ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00013535
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: 09/07/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
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 complainant commenced employment with the respondent on 22/11/2013 as a pre-pack operative. She works 39.5 hours a week for which she is paid €395.She rejects the outcome of an investigation into a complaint she had made of bullying and racial abuse.
She submitted her complaint to the WRC 2/3/2018.
Summary of Complainant’s Case:
On September 21, 2017 at 12:20 p.m. a colleague, J, impeded her access by failing to pull his chair in towards his work table. She had to pass with goods and in doing so brushed against his chair. He called her” black”.
She reported the matter to her supervisor Mr McD. He reported the incident to Mr Director.
The director called the complainant and the subject of her complaint to separate meetings the same day. He established that a term offensive to one’s dignity was used by J against the complainant. He advised the complainant that he was going to a funeral, would revert to her the following day. She states that this pause distressed her hugely.
She felt very traumatised by the incident and was off sick with stress and anxiety for 19 weeks until 31 January 2018.
Upon return to work on 31 January, the Supervisor and the Director called her to a meeting. They gave her a letter of apology from J, the author of the statement, advised her that they had activated the disciplinary procedure in consequence of his remark to her, and that he had received a sanction.
The complainant was not happy with this outcome, chose not to appeal the decision or activate the formal process. The complainant had no confidence in an in-house investigation and wanted an external person to investigate the complaint. This stems from the fact that on a previous occasion, in 2015, she made a complaint, was assured it would be investigated by an external person and yet it was investigated by a member of the board. On that occasion a colleague had made a complaint against her and she was prevented from speaking to the colleague to try and iron it out.
She has had ongoing difficulties with J. He deliberately stood in her path to block her when she was trying to access a particular place in the office. This happened on the 13 and 15 February. She asked the supervisor who had witnessed it what did he think and the complainant states that he just laughed.
The reason she is referring her case is that she wants to get an impartial outcome
Summary of Respondent’s Case:
The respondent manufactures, imports, and pre-packs plumbing items.
The complainant works in the pre -pack area.
The complainant notified the respondent store manager on 21 September 2017 that J, a colleague had tried to impede her movement and that when she accidentally brushed against his chair, he had called her “black”. The respondent supervisor informed the Director. The director interviewed both the complainant and the author of the statement who said he may have called her a knacker which not being Irish but Chinese he understood to mean ‘bad girl’. The respondent advised him that such statements were unacceptable and an affront to one’s dignity. He advised that he have to investigate the matter further. The director advised both parties that would revert to them the following morning.
The following morning the 22 September, the respondent received a text from the complainant to state that she was traumatised by the previous day’s statement and was unable to sleep. She went off on sick leave until 31 January 2018.
The respondent continued that day with the investigation of the statement made by J. This culminated in a request to J to write a letter of apology to the complainant. On 25 September the disciplinary code was activated against J and he was given a verbal warning. He accepted that he could not use such language.
Ten meetings with different members of staff were held to try and rectify the situation.
Regarding the complainant’s complaint about issues that had arisen in 2015, the respondent states that the person tasked to investigate the matters was not a member of the board but was a UK- based executive unknown to the parties and that at the time, or subsequently, the complainant lodged no objection to that person being engaged.
The director and store manager met the complainant on the 31 January, handed her the letter of apology and informed her of the disciplinary process and the sanction. She was advised at this meeting that if she was unhappy with the outcome she could make a formal complaint and request a formal investigation. On 11 February the respondent received an email from the complainant that she did not accept the apology and she wished to make a formal complaint. She was advised that if she chose this route, the respondent would engage an external expert to conduct the investigation. On the 20 February the complainant advised the company that she was not going to engage with that process and was referring her complaint to the WRC.
On the 31 April the respondent met with the complainant to deal with the 2 further complaints concerning issues with J which had arisen on the 13 and 15 February and which she included in her complaint form to the WRC on 2/3/2018 but had never alerted the respondent to these incidents previously. In relation to this point the respondent refers to an agreement struck with the complainant in 2015 that in the event of any conflictual situations arising she should go straight the Director. At this meeting the respondent suggested mediation.to which she initially agreed but then declined stating that she did not wish to meet J though it is noted that she stated in her WRC complaint form that she wold accept mediation
The complainant resigned on the 29 May 2018 and has taken up alternative employment.
Findings and Conclusions:
The complainant seeks an unspecified alternative to the process and remedies offered to her by the respondent.
I find that the respondent is obliged to follow all procedures to which the complainant and all other employees had consented. I find the complainant did not indicate any departure or failure on the respondent’s part to follow agreed procedures. I note she has doubts about the ability of the procedure to deliver an impartial outcome, but this was based on her previous experience with an Internal investigation. She did not identify a deficient outcome in that process.
I find that the respondent offered her an investigation or mediation to be conducted by an external party
While it is a very demeaning and humiliating thing to say to a colleague, it is the response of the respondent which is material here.
The complainant did not identify what the respondent should have done. I find that the respondent took all the steps required to investigate what was an offensive and humiliating incident. I find that the respondent took corrective action against the person who made the statement.
I find that the complainant opted out of a process which could have provided an acceptable remedy for her.
I recommend that the respondent remind employees of the relevant policies.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I recommend that employees are reminded of the contents of the respondent’s policies on equality of opportunity and dignity in the workplace.
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Use of procedures.