ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00013851
A Commercial State-sponsored Body
Johnny Fox Fórsa
Complaint/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: 23/08/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 13 of the Industrial Relations Acts 1969 andfollowing 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 Complainant commenced employment with the Respondent on 16 January 1995. The Complainant was initially employed on an Officer grade and was subsequently promoted to Manager grade in 2007.
In September 2017, the Complainant was subject to a complaint of bullying and harassment by a colleague. An investigation of the complaint concluded that the Complainant had a case to answer under the Respondent’s Disciplinary Procedures.
A formal disciplinary hearing resulted in the Complainant’s demotion to Officer grade. The decision to demote was upheld in a subsequent Appeal Hearing. Consequently, the Complainant was formally demoted from Manager to Officer grade on 15 March 2018.
The Complainant submitted his claim to the WRC Adjudication Service, under Section 13 of the Industrial Relations Act, 1969, on 3 April 2018.
Summary of Complainant’s Case:
In his submission, the Complainant stated that he was demoted from his position as Manager following the disciplinary process. He further stated that he was unsuccessful in overturning the sanction during the appeals process and was, therefore, referring his complaint to the WRC for the following reasons:
1. The sanction of demotion is harsh and disproportionate to the alleged offence.
2. The Complainant was not afforded fair procedures in line with natural justice as questions were asked during the disciplinary meeting which did not arise during the investigation of the Dignity in the Workplace complaint. In this regard, the Complainant stated that reference to the content of the investigation report should not have been used and considered when he was not given the opportunity during the investigation to make comment.
3. The sanction imposed does not take into consideration that the Complainant was acting in good faith and under instruction from a senior officer and while there is an admittance of management failure in the disciplinary sanction letter, the Complainant is the only person facing sanction. It is contended that this is unfair and not in line with natural justice and the Respondent’s disciplinary procedures.
4. In imposing the sanction of demotion, no mention or mitigation is applied in relation to the Complainant’s previous unblemished service as a Manager. The Complainant contends that this is unfair.
5. It is a well-established principle under the rules of the application of fair procedure that sanctions are applied as an attempt to improve behaviour rather than simply punish. The Complainant contends that the sanction of devotion is a punishment which will not only define him as a manager but will be an unfair stigma to be carried in front of his colleagues on a daily basis. It is contended that this is clearly appointment designed not to help him improve but to punish him indeterminately.
6. No consideration appears to have been given to applying a lesser sanction.
7. The Complainant contends that he was not afforded access to a process that would be considered fair under the rules of natural justice. It is contended that the two management representatives who heard and adjudicated on his final appeal under the internal procedures had already interviewed the Complainant about the complaint and decided that it warranted investigation. It is contended that these individuals had already interviewed the Complainant at the outset of the complaint and decided it warranted investigation. It is contended therefore that they were biased and had prior knowledge of all views and positions of the various parties involved in the complaint. On that basis, the Complainant contends that the two individuals involved could not impartially adjudicate on the issues under the complaint.
Submission on behalf of the Complainant:
In addition to the above grounds, further representations were made at the Hearing by the Complainant’s Trade Union representative.
It is submitted that this incident has had a profound effect on the Complainant. It is stated that he has suffered a drop in annual salary (amounting to €7,289.00 per annum), has had his reputation as a manager ruined and has had to suffer the humiliation and stigma of being demoted back among employees he supervised and managed for over 10 years.
It is further contended that the Complainant’s personal and professional representation both within the Respondent organisations and within the broader industry community lies in ruin. It is further submitted that, on that basis alone, it is abundantly clear the sanction imposed is disproportionate to a once off incident, that does not come within the meaning and definition of bullying and harassment.
According to the Complainant’s representative, the process and procedures used to determine the sanction infringed upon the Complainant’s rights to natural justice and in doing so subjected him to an unfair process. It is further submitted that it is clear the sanction imposed demonstrates a clear intent to punish the Complainant rather than impose a sanction to improve behaviour.
According to the submissions on behalf of the Complainant, the clear breach of the Respect and Dignity Policy, from the very beginning of the process, determined that the Complainant could not get a fair hearing. According to the Complainant’s representative, it is unprecedented that three Senior Managers would attend a meeting to examine a complaint and decide an investigation was warranted. It is submitted that a clear inference must be drawn from this that the Complainant, for whatever reason, was going to be subject to special treatment.
In relation to the issue of fair procedure and natural justice, the Complainant’s representative referred to the Irish Trade Union Federation guidelines, which were issued in 2003 and which contain the most extensive listings of the “rules of natural justice”. (I.T.U.F -2003:116) The Complainant’s representative referred to the aforementioned list from which he contended that it could easily be determined that the Complainant’s right to natural justice and fair procedure were denied. In support of this contention, the Complainant’s representative referred to the following:
· The Complainant was denied representation at the initial meeting on 8 September 2017.
· He did not get sufficient time to prepare for that meeting,
· The penalty imposed is by no means reasonable or proportionate,
· No mitigating circumstances were considered,
· It is abundantly obvious that the penalty imposed was designed to punish in a cruel and humiliating manner.
On that basis, the Complainant strongly contends that his rights to fair procedures and natural justice were infringed.
The Complainant requested that a favourable recommendation and that consideration be given to the following redress:
· The sanction of demotion is found to be disproportionate based on a process that was not in line with fair procedure and natural justice.
· The sanction of demotion to be set aside.
· The Complainant be reinstated to a comparable Manager grade outside his current base.
· That the Complainant be compensated for loss of earnings to date and that he be awarded compensation for the enormous damage to professional and personal reputation.
Summary of Respondent’s Case:
The Respondent provided detailed and comprehensive evidence in relation to the initial investigation of the complaint submitted against the Complainant by a colleague (Mr A), under the Dignity in the Workplace Policy and the disciplinary procedure which followed, as a result of Mr A’s complaint against the complainant being upheld. In addition to the aforementioned evidence, the Respondent set out the position in response to the Complainant’s complaint at the Hearing.
Respondent’s response to the Complainant’s complaint:
The Respondent’s submission that, at all times, they correctly followed their own policies and procedures in dealing with the complaint under the Respect and Dignity in the Workplace Policy and under the Disciplinary Policy.
It was submitted that the Respondent’s disciplinary policy and procedure provides a range of sanctions can be considered including sanctions less than dismissal, including demotion, where appropriate. It was further submitted that the stage at which the procedure is initiated depends on the relative seriousness and circumstances of the situation.
According to the Respondent’s submission, the grounds listed by the Complainant in his referral to the WRC are the same grounds raised at the disciplinary hearing and subsequent appeal hearing. The Respondent contends that these grounds have been addressed in detail.
In response to the Complainant’s contention that the two management representatives who heard and adjudicated on his appeal were biased, as they had already interviewed him about the complaint and had knowledge of all of the views and positions of the various parties involved in the complaint and therefore lacked the impartiality to deal with the complaint, the Respondent stated that the appeal hearing was conducted by one of their General Managers (Mr B). It was further contended by the Respondent that Mr B was the decision-maker in the appeal process. The Respondent stated that the Director of Human Resources (Mr C) while also attending the appeal hearing, did so only in an observer capacity and to take a record of the proceedings.
According to the Respondent, the attendees at the meeting had been advised to the Complainant and his Trade Union representative in advance. It was further submitted that neither the Complainant nor his representative raised any objection to Mr B hearing the appeal until the hearing, at which point in time the Trade Union representative questioned the impartiality of Mr B. it was further submitted that at that point, Mr C confirmed that there was no issue of infringement on natural justice as Mr B had not been involved in any part of the investigation or disciplinary process.
In addition, the Respondent submitted that, while Mr B was aware of the complaint in his role as General Manager with responsibility for the area, he was not privy to the investigation process or the investigation report until it was provided to him in order for him to conduct the appeal.
In conclusion, the Respondent submitted that they acted fairly and fully in line with their policies and procedures in coming to the decision to sanction the Complainant. It was further submitted that the Respondent denies the Complainant’s claim that he was not treated fairly in the disciplinary process and, on the basis of this submission, seek that the complaint be dismissed.
Findings and Conclusions:
During the Oral Hearing the potential for a negotiated settlement between the parties became apparent. On that basis, I gave the parties the opportunity of engaging in discussions at local level in order to reach a mutually agreeable resolution. In order to facilitate these discussions, I afforded the parties a period of time, consisting of number of weeks, within which to reach agreement or refer back to me for a recommendation.
The parties subsequently requested an extension of the period and this was provided. However, as the parties failed to reach agreement the matter was referred back to me for adjudication and issuing of a recommendation. On that basis, I proceeded to consider the respective submissions and evidence provided by the parties and to issue my recommendation based on those considerations.
This was a difficult and complex case on which to adjudicate. The matters giving rise to the Complainant’s complaint are serious in nature. They initially involved a complaint under Dignity at Work against the Complainant which was made by a junior colleague (Mr A) who had been suspended from duty and had his formal authority to carry out his duties removed by the Complainant. Mr A’s complaint was subsequently upheld following investigation and, as a result, the disciplinary procedures were initiated against the Complainant.
It should also be noted that the passage of time has increased the complexities of the situation and makes the issuing of a recommendation which might lead to the satisfactory resolution of the issue between the parties significantly more challenging. However, notwithstanding the above, I have given detailed consideration to the matter before me.
Dignity at Work complaint:
Firstly, I considered Dignity at Work complaint made by Mr A against the Complainant. I note, with interest, that Mr A’s complaint, which was submitted on 5 September 2017, relates to issues which took place one year earlier, in September 2016. Having reviewed the evidence in relation to this, it is not clear exactly why it took so long for Mr A to make his complaint. However, there are indications that he may have been holding off pending some form of resolution of the situation being achieved And, when this did not materialise, he decided to submit his formal complaint.
While there is no obvious evidence as to what may have resulted in there being no less formal resolution to Mr A’s complaint, or indeed whether or not the Complainant had any role in this, I am of the view that the responsibility rests clearly with the employer, in such circumstances, to ensure that the matter is appropriately and effectively addressed.
However, notwithstanding the above, I am satisfied that, once Mr A submitted his complaint on 5 September 2017, the Respondent dealt with it in a timely and appropriate fashion. I note that the Complainant and his representative have raised a number of issues in relation to the initial meeting, in this process, which took place on 8 September 2017 and was attended by Mr B, Mr C and the Respondent’s Employee Relations Manager (Ms D).
The Complainant and his representative contend that the presence of Mr B and Mr C at this meeting impacted on their impartiality at the appeal stage of the disciplinary process. I will deal with this later as part of my considerations of the disciplinary process. However, in the meantime, in relation to the Dignity at Work investigation I am satisfied, from the evidence presented, that this meeting was an exploratory meeting to assess the possibility of an informal or mediated resolution of Mr A’s complaint, in advance of the instigation of a more formal intervention. In that context, I find no difficulty, from a procedural perspective, with Mr B and Mr C’s attendance at this meeting.
On the basis that an informal/mediated resolution to the matters raised in Mr A’s complaint was apparently not achievable, the Respondent quickly set up a formal investigation of the complaint, which was conducted by Ms D. Having reviewed the Investigation Report compiled by Ms D into the complaint raised by Mr A against the Complainant, I find it to be a careful and thorough investigation which delivered clear and comprehensive findings/conclusions.
Based on Ms D’s Investigation Report in relation to the Dignity at Work complaint, the Respondent invited the Complainant to attend a disciplinary process.
When it comes to the assessment of the application of the disciplinary procedures, it is not my function to establish the guilt or innocence of the employee, but to consider whether or not the Respondent's decision to demote the Complainant, on the grounds stated, was reasonable in the circumstances and that fair process and procedures were applied when conducting the disciplinary process. In doing so, I must assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against.
Having reviewed the evidence pertaining to the Dignity at Work complaint against the Complainant and, in particular, in light of the seriousness of the actions/behaviours which were upheld by the investigator, I am satisfied that any reasonable employer would have decided to initiate disciplinary procedures in such circumstances.
I note that the Disciplinary Hearing was conducted for the Respondent’s Head of Operations (Mr E). I also note from the evidence that at the disciplinary hearing which was held on 10 January 2018, the Complainant was represented by his Trade Union representative. Mr E issued his decision on 19 January 2018. Based on clearly set out grounds, Mr E concluded that the sanction of demotion to Officer grade was appropriate in the circumstances.
The Complainant then appealed Mr E’s decision. The Appeal Hearing was held on 27 February 2018 and was conducted by Mr B. This Hearing was also attended by Mr C. the Complainant and his Trade Union representative contend that both Mr B and Mr C were compromised by virtue of their attendance at the exploratory meeting in relation to the Dignity at Work complaint on 8 September 2017. It was contended that their attendance at the previous meeting impacted the impartiality which Mr B and Mr C would bring to the Appeal process.
Having carefully reviewed all of the evidence adduced, I note the Respondent’s evidence that Mr C’s presence at the Appeal Hearing was purely in an observatory capacity and to take notes. I also note their contention that Mr B had no detailed involvement in the matter subsequent to the exploratory meeting on 8 September 2017. Finally, I note the Respondent’s submission that despite being advised in advance, the Complainant and/or his Trade Union representative did not raise any objections prior to the Appeal Hearing commencing.
Having given this matter careful consideration I am of the view that, for the avoidance of any doubt with regard to the objectivity and impartiality of the appeal process, the Respondent would have been best advised to appoint a different Appeals Officer and provide that person with the appropriate HR support in the person of somebody other than Mr C.
However, notwithstanding the above conclusion, I am also of the view that the Respondent’s persistence with Mr B as the Appeals Officer did not impact to the extent that the entire disciplinary process should be considered fatally flawed and the sanction emanating from it be set aside. This view is based on my belief that the process up to the point of the appeal hearing had been conducted in a fair and objective fashion and contained all of the aspects one might expect to find in such a process.
I am also satisfied that, while it might have been more prudent to have somebody other than Mr B conduct the appeal, his earlier involvement in the matter was prior to any procedure formally commencing. In addition, in the meantime, a thorough and comprehensive Dignity at Work Investigation had taken place and a full disciplinary investigation/hearing had been conducted. Based on this and having reviewed the outcome the Appeal process, I find no evidence to suggest that Mr B’s findings/conclusions lacked the objectivity contended by the Complainant and his representative.
Consequently, having reviewed all of the evidence adduced I am satisfied that the Respondent’s decision to impose a sanction of demotion on the Complainant was not unreasonable in the circumstances. However, having taken on board the submissions made by the Complainant and his representative I believe there should be some scope for mitigation in this regard, particularly in relation to the duration of the sanction.
Notwithstanding the seriousness all the complaints made against the Complainant by his colleague, Mr A and the requirement of the Respondent to take appropriate action in this regard, I am of the view that given the Complainant’s previous good record and the fact that he has served 18 months at the lower Officer grade, consideration should be given to amending the sanction and its impact on the Complainant.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I make the following recommendations:
1. That the Respondent would agree to end the Complainant’s period of demotion with immediate effect.
2. That his Manager Grade salary would be restored to its March 2018 level and that this restoration would be retrospective to 15 March 2019, thereby curtailing the financial impact of the demotion to one year, i.e. 15 March 2018 to 15 March 2019.
3. That the restored salary would apply to the Complainant on a “red circled” basis, pending the emergence of a vacancy at Manager grade, which the Complainant should then be eligible to apply for.
4. That any application from the Complainant, arising from 3 above, should be assessed and processed in an objective manner and should not be influenced by the events leading to the submission of the Complainant’s complaint to the WRC.
5. That the issue of an appropriate work location for the Complainant, either now or in the event of a successful application for a Manager role in the future, would be at the discretion of the Respondent, but would also take on board the reasonable preferences of the Complainant in this regard, in line with a spirit of good will that would hopefully emanate from this overall recommendation.
6. That, in the event, the Respondent accepts and implements the above recommendations, the Complainant will accept that all matters in this regard have been fully addressed and closed.
That concludes my recommendations.
Dated: 15th August 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Industrial Relations Act
Bullying and Harassment