ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018770
An Executive Officer
A Third Level College
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: 18/02/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 13 of the Industrial Relations Act 1969, this dispute was referred to me by the Director General. I conducted a hearing on February 18th 2019 and gave the parties an opportunity to be heard and to set out their respective positions in relation to the matter in dispute. The complainant was represented by Mr Vivian Cullen of SIPTU. Three members of the Human Resources (HR) Department and the head of the section where the complainant works attended the hearing on behalf of the College.
On February 21st 2019, I received an additional submission from Mr Cullen on behalf of the complainant. This was copied to the College who provided a response on March 25th. On May 2nd, I received an email from Mr Cullen in which he stated that he and the complainant took exception to the College’s submission of March 25th and they wished to wait for a witness to return from abroad to corroborate their position. On May 24th, I received a final document from Mr Cullen on behalf of the complainant. I have reached the conclusions outlined below taking account of all the documents submitted at the hearing itself and afterwards up to May 24th 2019.
I would like to apologise for the delay coming to these conclusions and I acknowledge the inconvenience that this has caused for the parties.
The complainant said that he first began working in the College in 2007 and the documents submitted in evidence show that he has been employed as an executive officer since 2012. In July 2017, he moved to a role in the Accounts Payable (AP) Department. The complainant is also a graduate of the College and he has a Master’s Degree in Political Science. He is studying on a part-time basis for a PhD.
Having moved to his job in AP in July 2017, by November that year, the complainant’s section head was not happy with his performance and wanted to put him on a performance improvement plan (PIP). This was confirmed to him at a meeting on November 13th. On December 11th, the complainant submitted a complaint of bullying to the HR Department and he went absent due to stress.
On September 10th 2018, an investigation meeting took place with the complainant and his union representative. In his submission of May 24th, the complainant said that, at the meeting, he attempted to give the investigator names of people who could give evidence regarding his treatment by the section head. He said that “this was immediately shut down” and that the investigator responded, “if we deem the calling of witnesses appropriate, we will come back to (sic).”
Following the initial meeting with the complainant and his union representative on September 10th, the investigator met a witness selected by the complainant. He also met the complainant’s section head. On September 13th 2018, the witness sent an email to the SIPTU section organiser who had accompanied the complainant to the meeting on September 10th. The mail included an attachment with a list of names of people who, the witness said, had issues with the section head.
A preliminary report was issued on September 19th and on October 16th, Mr Cullen of SIPTU wrote to the HR Department stating his view that the investigation was flawed and seeking a new hearing. The allegation that the investigation was flawed was refuted by the HR Department and by the investigator who issued his final report on October 23rd 2018. He stated that he “did not believe that (name of the complainant) was bullied, belittled, denigrated or victimised” by his section head.
Much of the information submitted to me at the hearing of this complaint and in the supplementary papers set out the complainant’s objection to the PIP and his case that he was not properly trained in the components of his job. The respondent’s submissions deal with the rationale behind the section head’s decision to initiate the PIP. This dispute however, is about the College’s refusal to agree to the complainant’s request which is clearly set out in the submission he sent to me after the hearing on February 21st:
“In summary, I am requesting that an external investigator be appointed to carry out a new investigation into my complaint.”
My role therefore, is to consider if this request is reasonable, and if it is, to recommend that a new investigation be carried out by someone who is not an employee of the College.
Summary of Complainant’s Case:
In his letter of October 16th in which he set out his concerns about the investigation into the complainant’s allegation of bullying, Mr Cullen raised the following issues:
1. The length of time that the investigation took and the explanation given by the College that this was due to the complainant being unfit to engage with the process;
2. The failure of the investigator to allow the complainant to call witnesses;
3. The failure of the investigator to allow the complainant’s witness to make a presentation at the investigation meeting;
4. The failure of the College to provide the complainant with Terms of Reference for the Investigation;
5. The complainant’s contention that he was not informed that the hearing of witness evidence was at the discretion of the investigator;
6. The complainant’s position that the investigator did not deal with the substantive issues of his complaint.
The investigator’s report was issued on October 23rd 2018.
On October 24th, the employee relations manager responded to Mr Cullen’s concerns as set out above. She said that, while the reason that the investigation took so long was partly the College’s fault, the complainant had also been unavailable. The employee relations manager said that the complainant was issued with the Terms of Reference for the investigation in a letter of August 27th and by email on September 7th 2018. A copy of the letter of August 27th was submitted in evidence. The Terms of Reference are clear in that it was at the discretion of the investigator to consider the evidence of any witnesses suggested by either side.
On October 25th, the investigator responded to Mr Cullen’s concern that the complainant’s witness was not allowed to attend the investigation meeting. The investigator said that this would not have been appropriate, and that he had a separate meeting with the witness.
The investigator refuted the suggestion that he did not deal with the substantive issue of the complainant’s allegation. He said that he believed that he “diligently carried out the investigation” and that he considered and raised questions in relation to specific examples of bullying put forward by the complainant.
The complainant remains of the view that the investigation was flawed, that he was not permitted to put forward the names of witnesses and that his complaint should be investigated “de novo” by an external person.
Summary of Respondent’s Case:
It is the respondent’s case that the investigation of September 2018 was carried out in accordance with its policy on Dignity and Respect, which is agreed between the College and SIPTU. The procedure is to assign an internal investigator and, in the event of a possible conflict of interest, an alternative investigator is appointed. No concerns were raised by the complainant or his representative regarding the appointment of the investigator.
At the investigation and at subsequent meetings, the complainant was represented by the SIPTU section organiser or a full-time SIPTU official. He received the Terms of Reference for the investigation, which he did not challenge. On the morning of the meeting on September 10th 2018, the complainant asked the investigator to meet one named witness and this person was interviewed separately from the complainant on the afternoon of September 10th 2018. It is the respondent’s case that the complainant did not offer the names of any additional witnesses to support his claim that he was the victim of bullying by his section head.
Three days after the investigation meeting, the witness for the complainant sent an email to the SIPTU representative who attended the meeting with the complainant. In his mail, he attached a list of names of potential witnesses for the complainant’s allegation of bullying. The mail was “blind copied” to the investigator. As the document did not come from the complainant himself, the investigator did not act on it. The SIPTU representative did not follow up with the investigator regarding the need for witnesses to be called.
On February 11th 2019, a week before the hearing at the WRC, the employee relations manager met the complainant with his SIPTU representative. She offered the complainant the opportunity to have his nominated witnesses interviewed by the investigator “for his consideration and findings.” The complainant refused this offer and stated again that he wanted an investigation to be carried out by an external person. The employee relations manager also proposed that the complainant’s allegation of bullying be re-examined by a different internal investigator, but this proposal was also rejected.
It is the College’s position that its long-standing practice of using experienced internal investigators under the Dignity and Respect policy works well and has not been challenged to date by any trade union. The respondent sees no reason to depart from the policy regarding this complaint.
Findings and Conclusions:
In the course of enquiring into this dispute, I have considered the evidence of those who attended the hearing, and I have reviewed carefully the documents submitted by both sides. From the perspective of the complainant’s request to have a new investigation into his allegation of bullying, I find as follows:
The complainant’s main issue with the investigation that was carried out in September 2018 is the fact that only one witness was called to give evidence on his behalf. The investigator found that the witness selected by the complainant “was not able to offer any evidence of bullying” by the section head.
From his evidence at the hearing on February 18th, I understand that the complainant wants to call all the employees in the office where he worked.
The Terms of Reference for the investigation provide that the investigator may interview anyone he considers to be appropriate. At the outset of the investigation, neither the complainant or his union representative objected to this element of the terms of reference.
Just three days before the investigation meeting, on September 7th 2018, the employee relations manager wrote to the complainant and advised him, “…if you have witnesses, you need to inform the Chair and he will consider the appropriateness of meeting with them.” It would appear that this prompted the complainant to call to the investigator’s office on the morning of September 10th, when he asked the investigator to meet his named witness.
I understand from the complainant’s written submission that, at the meeting with the investigator, he suggested to the investigator that more witnesses should be called, but the investigator decided against this course of action.
After the investigation meeting on September 10th, the complainant or his union representative did not consider writing to the investigator and providing a list of the witnesses that they wanted him to meet. More than a month later, on October 16th, when they received the preliminary report, they raised an issue about other witnesses, but names were not provided at that stage either.
The complainant’s SIPTU representative who attended the investigation meeting with him on September 10th has not raised any issue regarding the conduct of the meeting.
I do not accept that the investigation was flawed, and I find that the concerns raised by Mr Cullen in his letter of October 16th 2018 have been properly addressed.
It is my view that, in respect of this complaint, there should be no departure from the provisions of the Dignity at Work Policy. This provides for an investigation by an internal manager who is not associated with either party to a complaint of bullying. No suggestion was made that the investigator was biased, unprofessional or that he did not take the complainant’s allegations seriously. His report is robust and thorough and his conclusions appear to be reasonable in the context of the circumstances of the allegations and the section head’s concern about the complainant’s performance. I see no merit in having the complainant’s allegation of bullying investigated by an external person, or by another internal person.
I accept that the complainant is dissatisfied with the fact that his colleagues have not been given an opportunity to make statements to the investigator on his behalf and for their contribution to influence the outcome of the investigation.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the complainant provides the names of his selected witnesses to the investigator so that they that they can be invited to provide evidence in support of his allegation of bullying. On the basis of the additional witness testimony, I recommend that the investigator review his findings of October 23rd 2018.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Investigation into a complaint of bullying