ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00013191
A Machine Operator
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 09/08/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 13 of the Industrial Relations Acts 1969,following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker commenced his employment with the Employer on 1st March 2000. The Worker referred a dispute to the Workplace Relations Commission (‘WRC’) in relation to the process and findings of an investigation into complaints made by him under the Company Dignity at Work Policy.
Summary of Worker’s Case:
SIPTU on behalf of the Worker submits that on 22nd January 2016 it wrote to the Employer Senior HR Manager, Ms C to advise of the Worker’s intention to pursue a complaint of bullying in the workplace as a result of his interactions with members of the management team in the plant and to seek information relating to the Employer’s policy and procedures. On 31st March 2016 the Worker formally advised Ms C that he wished to pursue a formal complaint of bullying against three named members of the management team and inquiring as to how the Employer intended to process his complaint. A further letter was issued to the Employer on 27th June 2016 in relation to health and safety concerns which had not been addressed following the Worker’s representations to senior management. SIPTU submits that no response was received and SIPTU again wrote to the management through Mr P (SIPTU Manufacturing Division). Ms C responded that the Employer had not received the Worker’s formal complaint and that he should submit it directly to her. This request was complied with on 10th October 2016 and following a conversation between the Worker and HR it was followed up with a formal letter from the Worker on 15th November 2016. Due to Mr P’s absence on sick leave SIPTU Workers’ Right Centre took over representation. SIPTU submits that it again wrote to the Employer on 16th January 2017 and 23rd January 2017. This resulted in email exchanges between the parties which culminated in a confirmation by SIPTU that the Worker was prepared to engage in the process although he was absent from work following a workplace accident. The Employer engaged the services of an external HR Consultant Mr G to undertake the investigation. Mr G met with the Worker and his union representative on 16th March 2017 and followed up with a formal interview on 30th March 2017. SIPTU submits that minutes of the various meetings undertaken by Mr G were provided to the parties and a final report was issued on 14th June 2017. Mr G did not uphold the Worker’s complaint and in the conclusion of his report stated: “The investigation finds that many of the issues complained of by [the Worker] arise from his unrealistic sense and level of expectation in relation to the working time flexibility he demands. Such expectations cannot be met in a modern, demand led shift working production environment. The investigator is of the view that unless this sense of expectation is modified by [the Worker], it will continue to give raise to further issues between [the Worker] and his line managers”.
SIPTU submits that the finding was set against a backdrop of the position adopted by the investigator in relation to the “Burden of Proof” under which he compiled his report. Under Section 4 of the report Mr G advised: “In investigating the complaints made the Investigator considers the appropriate burden of proof to be on balance of probabilities. The Investigator also considers that the burden of proof is on the complainant to evidence that their version of the matter is preferable version and that where there is a material, substantial, or meaningful doubt attaching to any specific complaint made by the complainant, the respondent is entitled to the benefit of that doubt”.
SIPTU appealed the Report on 22nd June 2017. The Employer responded on 28th June 2017 stating that “the code provides that an appeal should focus only on the aspect of the case cited by the appellant as being the subject of appeal” and requested to identify the grounds of appeal. SIPTU replied on 2nd July 2017: “At face value the above standard in respect of the burden of proof is not outside the norm. However, where the burden of proof is placed on the complainant to evidence that their version of events is the more plausible there is an onus on the investigator to test said evidence. [The Worker] as part of the investigative process identified a number of witnesses who would be in a position to corroborate his version of events. It would appear based on the documentation received that [Mr G] neglected to interview any of these witnesses. In that set of circumstance [the Worker’s] ability to meet the burden of proof required of him is an impossible task and in our view presents a fundamental flaw in the investigative process…[the Worker’s] entitlement to fair procedures and due process were fundamentally compromised by the manner in which [Mr G] conducted his investigation.”
SIPTU submits that the appeal was heard by Ms C on 11th July 2017. The parties agreed to a facilitation process and met on 22nd September 2017 under the auspices of an independent mediator. SIPTU submits that this approach did not result in an agreement. SIPTU submits that it confirmed that the Worker was proceeding with the appeal and Ms C committed to consulting with Mr G before deciding on the appeal outcome. SIPTU stated that on 2nd January 2018 SIPTU received an email from Ms C inquiring as to whether the matter was closed. SIPTU replied confirming that it is awaiting the appeal outcome. SIPTU claims that the Employer requested confirmation that the grounds of appeal were as per the original correspondence, which it confirmed on 18th January 2018. SIPTU submits that it did not receive any response and given the duration of the process submitted a complaint to the WRC on 13th February 2018. Subsequently, the Worker’s appeal was rejected on 19th April 2018.
SIPTU contends that Mr G’s methodology in the conduct of his investigations did not provide the Worker with any fair or reasonable opportunity of validating his complaints and that the resulting findings must be considered as being unsafe. SIPTU seeks a recommendation of the initiation of a fully independent investigation that would provide an appropriate level of fair procedures and that the report issued by Mr G be set aside.
Summary of Employer’s Case:
The Employer submits that it employs approximately 3,500 employees across a campus of locations. The Worker commenced employment with the Employer on 1st March 2000 and is employed in the position of Manufacturing Operator. On 15th November 2016, the Worker lodged a formal complaint to Ms C, HR Director, in which he made allegations of bullying and harassment against three work colleagues, Mr A, Mr B and Mr C. The Employer has a comprehensive Dignity at Work Policy. The complaint was processed in line with the policy and allowing for agreement and availability of the investigator, Mr G, was appointed to investigate the complaints. The complaints subject to investigation dated from 2012 to 2016. Mr G commenced the investigation in March 2017 and issued a comprehensive report in June 2017.
Investigation process The Employer submits that the Worker was interviewed on 30th March 2017. Mr A and Mr B were interviewed on 8th May 2017. Mr C was no longer with the Employer at the time. The Worker was provided with a record of the interviews and afforded the right to respond to same, which he availed of. All participants were advised of their right to representation throughout the proceedings.
In June 2017, the investigation process was concluded and Mr G issued his findings concluding that the investigation had not upheld the Worker’s complaints. Mr G was “absolutely satisfied that neither [Mr A] or [Mr B] have breached the definition of Bullying as set out in the [Employer] Dignity at Work Policy...”
Appeal Process The Employer submits that on 22nd June 2017, SIPTU sought to appeal the finding of the report. On 28th June Ms C advised SIPTU that she would hear the appeal and sought the Worker to set out the grounds of his appeal. On 2nd July 2017, SIPTU replied setting out the basis of the appeal, which centred on one aspect – the interviewing of witnesses. The Employer submits that it was accepted by the Worker that the burden of proof was on the balance of probabilities. However, the Employer contends that it was the Worker’s view that his entitlement to fair procedures and due process were fundamentally compromised because Mr G did not speak to all witnesses named. The Employer submits that on 5th July 2017 Ms C wrote to SIPTU advising that she could hear the appeal on 6th July 2017. Two further dates were offered and owing to SIPTU availability the appeal proceeded on 11th July 2017. The Employer submits that during that meeting it was requested by SIPTU and agreed that the matter would be taken off line and processed through facilitation. The Employer submits that on 17th and 23rd August 2017, Ms C followed up with SIPTU seeking an update as to the arrangements for the facilitated process, which the parties entered into on 29th September 2017. Between September and December 2017 there were a number of engagements between the parties’ representatives, which were ultimately unsuccessful. The Employer submits that on 2nd January 2018, Ms C wrote to SIPTU seeking an update and on 3rd January SIPTU advised that the Worker wanted to proceed with the formal appeal process. On the same date Ms C sought confirmation that grounds for appeal as entered on 2nd July 2017 remained the same. The Employer contends that, having considered that grounds of appeal and on seeking responses from Mr G, Ms C issued the outcome of the appeal on 19th April 2018, concluding: “…I found that there were justifiable reasoning as to why not all parties and or events referred to by [the Worker] were interviewed and I have set out below examples of same…” The letter went on to list a number of examples.
The Employer’s position:
1. The Employer has a comprehensive Dignity at Work Procedure in place and provided training to all its employees on same. The Worker received training in 2010 and 2016.
2. The complaint was independently investigated in line with company policy, resulting in a comprehensive investigation document.
3. At the request of the Worker, the Employer paused the appeal process to allow for external facilitation.
4. It was only following the conclusion of the aforementioned process and having considered the grounds of the appeal fully and speaking to Mr G was the Employer in a position to issue an outcome.
5. The Employer provided a transparent, tangible and justifiable basis for its appeal findings.
6. The Worker has not identified the material effect on the findings of the investigation as consequence of not interviewing the other persons named by him in his complaint.
Findings and Conclusions:
I have carefully considered the submissions made by both parties and I have concluded as follows.
The incidents that gave rise to the Worker’s complaints spanned from 2012 to 2016. The Worker referred his complaints to the Employer on 15th November 2016 and included some 16 pages of diary entries. The Worker outlined six specific complaints against his colleagues, Mr A, Mr B and Mr C. Mr C was no longer an employee of the Employer at the time. The Employer commissioned an independent external HR consultant to conduct an investigation into the allegations. The Worker and the persons he made complaints against were interviewed by Mr G, the investigator. The parties were given the right to representation. The Worker was represented by SIPTU. There was no dispute that the Worker was furnished with the transcripts of all meetings and throughout the process the Worker was consulted and was given an opportunity to comment, which he exercised. Mr G concluded his investigation and did not uphold any of the Worker’s complaints. The Worker exercised his right to appeal. The appeal process was suspended following SIPTU suggestion that there may exist the possibility of some form of mediated agreement. The Employer agreed to a facilitated approach under the auspices of an independent external facilitator. As this approach did not result in an agreement, the Employer, on the Worker’s request, proceeded with the appeal process. The Employer reviewed the matter and sought further information from Mr G, the Investigator. The decision on the outcome of the appeal was issued on 19th April 2018. The Worker seeks a recommendation that the report issued by Mr G be set aside and another independent investigation be initiated.
The Worker claims that the investigation was conducted in variance with the principles of fair procedures and natural justice. He confirmed at the adjudication hearing that his concern related to his expectation that, in order to evidence that his version of the matters is preferable version every employee who was a potential witness should have been interviewed. The Worker argued that this was not the case and therefore, the Worker’s assertions could not be corroborated. I note that majority (some eight separate dates noted by the Worker) of the events which are the main subjects of the Worker’s grievance took place in 2013. I note in particular that the Worker delayed the referral of his grievance for a considerable period of time. I further note that Mr C who was a subject to the Worker’s complaint and Mr X, the Health and Safety Officer were no longer working with the Employer at the time of the investigation.
Putting that aside, having reviewed the parties’ submissions, Investigation Report and its appendices, I find that most of the Worker’s claims were related to operational issues concerning the allocation of shifts or, more specifically, to the Worker’s requests to alter the allocated shifts. These involved conversations, some via telephone, between the Worker and his supervisor. I find that it is the Employer’s decision as to what are the production levels and what are the appropriate staffing or training requirements. I note that the documentary evidence provided by Mr A of the Employer to the Investigator confirms that the Worker was, in fact accommodated on approximately 30 occasions a year on average.
I note that the event of 23rd June 2016 was one which the Worker argued was allegedly witnessed by other staff members and it was a relatively recent event. From the diary entry it is unclear who witnessed the conversation and the Worker referred to them as ‘the lads’. I note that the Worker alleges that following a request to alter a shift to allow the workers watch Ireland playing a soccer game the Worker said to Mr A that (as per his diary entry) “… I would like to see England play. The lads had a laugh. They said [the Worker] is English as a joke which they have in the past. The lads say it is a laugh and I accept that because they don’t mean me any harm. But [Mr A] said in front of the lads “That explains a lot” but he said it with malice. You could see he meant it not in a nice way. I said nothing…” I note that Mr A in his interview with the Investigator on 8th May 2017 stated that he did not recall any talk of an English game and he did not remember any banter in relation to the Worker being born in England. Moreover, he added that he did not know that the Worker was born in England until he read his complaint documents. Mr A in his note for the Investigator dated 8th May 2017 stated that the Worker was, in fact, one of the two workers who availed of the option to work the time up to watch Ireland play. I note that the Worker in his WRC Complain form under the heading “Nationality” recorded “Irish”. Therefore, I conclude that the Worker did not perceive himself as English. It is therefore not persuasive that the issue of the Worker’s nationality and the alleged comment would be of such significance to endorse a completely new investigation in respect of his complaints.
In relation to the “other issues” outlined in the Report I note that they relate mainly to the health and safety concerns of the Worker in respect of:
· The lifting of the heavy moulds - equipment was in place at the time the report was compiled,
· Lockers - these were moved as per the Worker’s request,
· The location of the trolleys – this was approved by the plant Health and Safety Officer,
· The Worker’s tailored chair - the Investigator noted that it is for resolution at shop floor level. The Investigator recommended that the Worker should continue to be provided with the bespoke chair as long as required and approved by the company medical adviser.
Having carefully reviewed the parties’ submissions, the Investigation Report including the appendices I find that the Employer’s procedures were followed and even if the assertion of the Worker was true (which I do not say it was) it would not taint the procedure as contended by the Worker. On balance, I am satisfied that the Worker was afforded a comprehensive and thorough process in respect of his complaints. Having considered the submissions of the parties I do not recommend concession of the Worker’s claim.
Recommendation (strictly pertaining only to the facts of this Dispute):
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have carefully considered the submissions made by the Parties to this dispute and I do not find in favour of the Worker in relation to his dispute.
Dated: September 18th 2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Appeal of grievance outcome