ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00014342
An Education 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: 25/09/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This dispute was submitted to the WRC by the complainant on April 16th 2018. In accordance with Section 13 of the Industrial Relations Acts 1969, it was assigned to me by the Director General. I conducted a hearing on September 25th 2018 and gave the parties an opportunity to be heard and to make submissions in respect of the disputed matter.
On February 24th 2014, the complainant submitted a complaint of bullying against her manager. Mediation took place in 2015 but the matter was not resolved and in August 2016, the college appointed an assessor to conduct a formal investigation, based on agreed terms of reference. The assessor had discretion to interview any witnesses that he considered relevant to his enquiry. His report was finalised on April 5th 2017. The allegations of bullying that the complainant submitted about her manager were upheld and the manager’s conduct was found to be in breach of the college’s policy on Dignity and Respect.
In April 2017, the complainant requested a move from her job so that she could report to a different manager. Following a long period of engagement with the college, she took up a new position on November 15th 2017 in a role where, in respect of operational issues, she has no contact with her former manager.
The manager appealed against the findings of the investigation on nine grounds, most of which related to the conduct of the investigation and his perception of failures on the part of the assessor. His appeal was considered by a committee of the college’s Governing Authority established to hear appeals in accordance with the policy on Dignity and Respect. Terms of reference for the appeal were agreed with the complainant and her manager. On January 23rd 2018, the appeals committee reached the following conclusion:
“To uphold the appeal of (name of manager) on the sole ground that (name of manager) was not given a full opportunity to have his case heard by reason of the fact that (name of assessor) did not interview any witnesses on behalf of (name of manager). The Committee determined that it would not direct that a replacement investigation be carried out.”
On February 22nd 2018, on behalf of the complainant, Mr Cullen of SIPTU wrote to the solicitor for the college. He pointed out that any failings in the report of the investigation into the allegations of bullying were not the fault of the complainant, but the responsibility of the assessor. Mr Cullen insisted that a new investigation should be carried out; however, this was refused and this complaint was submitted to the WRC on April 16th 2018.
Summary of Complainant’s Case:
For the complainant, Mr Cullen set out the issues of concern with how this matter has been dealt with by the college. In summary, the complainant has been worn down by the protracted nature of this dispute and the failure of the college to deal with it in the early stages. The decision of the appeals committee to set aside the original findings of the report, and then, to decide not to carry out a new investigation has had a devastating impact on the complainant and on her physical and psychological well-being.
At the hearing, it was evident that the complainant has suffered and that that she continues to suffer because of the fallout from the college’s decision in respect of her complaints. She said that she is anxious on a daily basis at work, contemplating any possible encounter with her former manager. She feels isolated, she finds it difficult to concentrate and she feels that her productivity and performance has suffered. She said that her sick leave record is terrible, due to having to take time off to put some space between her and the college. She said that her personal life with her friends and family have been affected due to her lack of energy, loss of confidence and ongoing anxiety.
At the hearing, the complainant and her union representative were unequivocal in their position that the only possible way that she can achieve justice from this matter is to re-open the investigation with a different assessor.
Summary of Respondent’s Case:
The respondent’s case is that it considers the findings of the appeals committee as reasonable, but it still takes account of the outcome of the original report in April 2017. Mr Rochford said that the college’s goal is to support the complainant to move forward in a positive way, and to this end, a new role has been created for her, where she now works in a building some distance from where her former manager works. In her new role, she has no interactions with her former manager.
Mr Rochford said that it is not realistically possible to carry out a new investigation, as the matters date back more than five years, some of the witnesses are no longer employed by the college and others may not remember the events that occurred. Mr Rochford argued that the passage of time means that the outcome of another investigation would not be sustainable and would be open to legal challenge.
Findings and Conclusions:
At the hearing of this matter at the WRC, it was apparent to me that the outcome of the appeal against the findings of the investigation of 2016/2017 and the protracted nature of this entire process has had a critically negative impact on the complainant. Relations between the complainant and her employer have broken down entirely. At the time of the hearing, she was out of work due to stress. Her trust in her employer has been damaged to the extent that it is evident to me that there is little prospect that she will be able to resume a normal working relationship.
From the discussions that took place at the hearing, I understand that both sides are open to negotiations on terms for the complainant to leave her job on redundancy grounds and it is my view that, subject to the complainant’s agreement on the terms offered, this is the most practical outcome from the current fractious situation.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
It is my view that any intervention on my part in the subject of this dispute will not achieve a resolution. I understand that the complainant is open to moving on with her career and to considering alternatives to remaining with this employer. On that basis, leaving aside the subject of this dispute, I recommend that the parties engage constructively to conclude this matter by reaching an agreement for the complainant to be made redundant on terms in excess of the statutory minimum provided for in the Redundancy Payments Act 1967 – 2014.
Dated: 19th March 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Investigation into a complaint of bullying