ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00013807
A Community Development Organisation
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 has been employed with the Employer since 1998. He claims that the Employer failed to meet its obligations in respect of addressing a complaint pertinent to the organisation’s Dignity at Work Policy and the provisions of S.I. 17 of 2002.
Summary of Worker’s Case:
SIPTU on behalf of the Worker submits that on 9th October 2017 he submitted a complaint to the Centre Manager, Mr K in relation to his supervisor Mr A. The catalyst for this complaint was an incident on the 6th October 2017 whereby the Worker alleged that he was verbally abused by Mr A, was accused of being a bully by Mr A and that his personal space had been violated in the context of the exchange. In his complaint the Worker recounted that he was the subject of ongoing bullying and that, in his opinion, Mr A was a “serial bully”. SIPTU submits that the Worker’s complaint was acknowledged by Mr K by letter dated 17th October 2017. Mr K confirmed that the matter was being investigated and that he would revert in due course. SIPTU submits that on 31st October 2017 SIPTU wrote to Mr K advising that the union would be representing the Worker and sought information in relation to the identity of the investigator, the policy document to be utilised and the terms of reference for said investigation. Mr K neither acknowledged nor responded to the union’s letter. On 1st November 2017 Mr K wrote to the Worker to advise that Mr A had been interviewed and that the Employer was awaiting a written statement from Mr A and that the matter would be pursued on Mr A’s return from annual leave. SIPTU submits that on 23rd January 2018 the Worker received a letter from the newly appointed General Manager, Ms G which advised that following the investigation that had been carried out it was the Employer’s opinion “that there are no grounds for bullying by either party”. The letter went on to identify that “For the record, measures were put in place immediately after the event to accommodate both parties regarding communication as a result of the allegation of bullying”. SIPTU claims that the letter was drafted in circumstances where there was absolutely no engagement by management with the Worker or his trade union. The Worker was not interviewed in the course of any investigation into his complaint, he was not advised as to who was conducting the investigation, was not advised of the policy being used or the terms of reference being relied on. The Worker was not consulted in any way in relation to the purported measures adopted by management to accommodate parties. SIPTU submits that the union wrote to Ms G on 26th January 2018 referring to its previous correspondence and request and outlining concerns in relation to the process engaged in by the Employer and identified that the actions of the Employer contravened the principles of natural justice. SIPTU further identified that it was incredible to suggest that an investigation had been concluded in the absence of interviewing the Worker and that the absence of an investigation report outlining the basis for the investigation’s finding compromised the provisions of S.I. 17 of 2002. Ms G responded by letter dated 19th February 2018 advising that an informal investigation had been conducted by the previous manager. However, based on the content of the union’s letter the Employer was now providing the detail requested in the original correspondence. Ms G advised that the intention of the Employer was to progress to a formal investigation and sought the Worker’s agreement to the appointment of a named external HR advisor to conduct same. SIPTU submits that the union wrote to Ms G on 22nd February 2018 agreeing to participation in the proposed process. Ms G wrote again on 12th March 2018 to advise that the Employer had received correspondence from Mr A’s representative (another SIPTU official). The letter went on to advise that the Worker’s complaint did not constitute an allegation of bullying and that mediation remained available to the parties. SIPTU submits that it responded to confirm that the Employer’s position was unacceptable and confirmed that the complaint would be forwarded to the WRC. SIPTU claims that the final letter from Ms G dated 12th April 2018 outlined the Employer’s disappointment in relation to the union’s intentions.
SIPTU argues that the Employer received a very serious complaint from the Worker in relation to the incident on 6th October 2017. The body of the complaint clearly indicated that this was not an isolated incident. The effects of this incident were such that the Worker had to ring in sick the following day due to the impact of this incident on his health. SIPTU contends that the Employer failed in its obligations to deal with this complaint in an appropriate manner.
SIPTU contends that:
1. The Employer has purported that the issues involved were investigated. However, the investigation was undertaken in the absence of any engagement with the Worker or his representative.
2. The Employer has confirmed that the complaint was not well founded. This decision was communicated in the absence of any report or any indication for the rationale for coming to such conclusion.
3. Following representations by SIPTU the Employer amended its position and confirmed its intentions to conduct a formal investigation and proceeded to appoint an external investigator and issued terms of reference for the purposes of same.
4. Based on objections from the respondent to the complaint the Employer abandoned that process.
SIPTU submits that the Employer have not made any realistic or genuine attempt to appropriately deal with the Worker’s complaint. SIPTU cited South Tipperary County Council v A Worker AD1135.
SIPTU seeks a recommendation that the process suggested by the Employer in respect of an independent investigation should be re-activated, particularly given that the Worker s still required to report to Mr A. SIPTU also seeks an appropriate compensation arising from the Employer’s disregard for the Worker’s entitlements to due process and fair procedures in the pursuit of his complaint.
Summary of Employer’s Case:
Ms H, the Chairperson represented the Employer. Ms H emphasized that the Employer is a community organisation. Ms H confirmed that both the Worker and his supervisor are valued employees. The Worker has an unblemished record. She confirmed that following the original complaint the Worker was not interviewed or contacted to provide any additional information. She also confirmed that copy of Mr A’s written submission was not provided to the Worker during the informal investigation and it was not given to the Worker until Ms G suggested the formal investigation. Ms H noted that the organisation’s view on the matter was that both employees would have to work together in the workplace in line with the Employer’s policies and procedures. She noted that the Employer have offered an anger management training to the Worker. She noted also that the Employer has extended an offer of mediation to both parties. However, it was noted that the Employer cannot compel the parties to participate in the mediation process.
Findings and Conclusions:
In relation to this dispute I find as follows.
The Worker has referred a serious complaint to the Employer about the treatment being received from his supervisor. The Worker noted in his complaint that he felt that this treatment constituted bullying. I find that it was up to the Employer to utilise the applicable procedures to establish whether or not the Worker was in fact bullied. I carefully reviewed the parties’ submissions and I am satisfied that the Worker was not afforded a comprehensive and thorough process in respect of his complaint.
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.
In all of the circumstances of this dispute, I find that the Worker was not afforded a fair process in respect of his complaint. I recommend that the Employer investigates the Worker’s complaint in accordance with the provisions of S.I. 17 of 2002 in a timely manner.
Dated: September 19th 2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Bullying- flawed procedures