ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018552
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: 07/02/2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
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 complaint dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Summary of Complainant’s Case:
The case before you today is taken by SIPTU on behalf of our member the Worker, against her employer, the respondent. The case is taken under the Industrial Relations Acts and relates to an appeal of a disciplinary sanction issued to our member.
Our member was sanctioned a deduction of two weeks’ pay after she submitted a complaint against her line manager, which the employer then determined to be “malicious”.
We strongly dispute the company’s contention and are seeking that this sanction be withdrawn.
The Worker works as an Escalations Supervisor. She joined the company in 1982.
In 2016 The Worker had a case heard by the Adjudication Service of the Workplace Relations Commission under the Industrial Relations Act.
The outcome of this decision was a recommendation that the employer should investigate a complaint made by The Worker under its anti-bullying and harassment procedures, and that she be paid €3,000 in compensation. This case was appealed to the Labour Court by the employer. The Court recommended that the employer should;
a. “undertake to investigate, through its anti-bullying and Harassment Policy procedures, the Claimant’s complaints of bullying and harassment that were outlined to Management in correspondence dated the 9th of May and the 27th November 2014”.
In 2017 the Worker informally approached members of management with issues regarding her immediate line manager Ms NC. She sought to raise these issues informally in line with the company grievance procedures .In August 2017 for example she spoke to Ms EH (Operations Production Manager) and Ms RG (People Partner HR).
She did not see any action taken by management in relation to her issues.
The Worker was on sick leave for 2 weeks from 14th December 2017 until 3rd January 2018.
She was not paid sick pay during this period; two weeks’ pay in total. She later learned that this was based on an instruction from Ms NB. The Worker’s sick pay query was discussed at the Workplace Relations Commission later in mid-2018 as part of a collective dispute between SIPTU and the employer in relation to changes in sick pay policy. Ms NB was involved in this dispute. The Worker received these two weeks’ pay as part of this dispute.
The Worker attended the company doctor on 5th January and on 8th January she had a back to work meeting with Ms EH and Ms RG. At this meeting she discussed the issues she had raised in relation to Ms NC, and was advised in response that she should put in a written complaint.
She submitted a complaint on 12th January under the grievance procedure which outlined a number of claims the Worker made in relation to Ms NC including;
b. Transferring of The Worker’s team members without permission
d. Leaving a personal medical document in an unsecure area
In response an investigation was undertaken, by Mr LD (Smart Metering Programme Manager) and Ms NO (People Partner HR).
The terms of reference were to investigate The Worker’s complaint against Ms NC.
The investigators interviewed The Worker, Ms NC and Ms EH.
The Worker was invited by Mr LB, Head of Asset Operations and a member of the management executive. Mr LB, who had not been involved in the investigation up until this point, asked to meet with the Worker off site to discuss her concerns in a confidential manner.
At this meeting the Worker was offered an alternative position to move to. This position was however filling in for a colleague who was on maternity leave. The post had been advertised already and several of The Worker’s colleagues had been interviewed for this position. She therefore declined the offer.
The following day Ms NB referred to this meeting in an email to the Worker, despite the assurances to the Worker that the meeting was to be confidential.
The Worker was referred to Occupational Health and an appointment was set up on 8th February 2018. She was not given a reason for this referral; she had already met with the same service following her illness absence one month earlier. The occupational health specialist during the appointment did not know the reason for the referral.
The investigation report was issued on 9th May 2018. The report found that one of the Worker’s allegations were partly upheld, and the others were not upheld.
The last two paragraphs of the report are as follows:
i.5.5 There is clear documentary evidence included in the investigation report which serves to refute the allegations made by The Worker. Furthermore, Ms NC presented as very credible and provided detailed documentation to support her defence against each of the allegation made.
ii.5.6 Taking all of this into account, and having due regard for all submissions received by the Investigation team we are deeply concerned that the Worker complaint was not made in good faith and may in fact constitute a malicious attempt to undermine her manager, Ms. NC.
The Worker was invited to a disciplinary hearing which was held on 12th June. While all previous meetings had been held off-site, this disciplinary meeting was to be held in a meeting room on-site.
The disciplinary meeting was to discuss the conclusion in the investigation report that The Worker’s complaint “may in fact constitute a malicious attempt to undermine her manager, Ms NC”.
The Worker was represented by Mr YM from SIPTU. At this meeting The Worker highlighted her concerns that the meeting was held in an open-plan location which would be visible to other staff members; that it was located near Ms NC’s desk. She asked why this meeting, unlike the others were not arranged in a more private location off site. She highlighted that it would be clear to other employees that she was meeting with HR.
The Worker strongly disputed that she had made a malicious complaint. She explained that she had been instructed by management to make this complaint formally after she had tried multiple times to resolve the issue informally.
She stood by her complaint against Ms NC.
SIPTU highlighted serious concerns that disciplining an employee who has made a complaint against a member of management may send a troubling signal to other employees who have issues that need to be resolved through the grievance procedures.
The Worker contends that during the disciplinary meeting Ms NB stated that the Worker “was malicious” despite the investigation report having only used the term “may”.
Following this disciplinary meeting Ms NB emailed the Worker seeking her further comments in relation to several points in her original complaint, which she wanted clarification on as part of her “investigation”.
A discussion followed via email where the Worker sought clarity as to what was the matter being investigated. A discussion took place disputing the accuracy and completeness of the minutes.
The Worker was issued with a disciplinary sanction; she would be deducted two weeks’ pay due to what the company determined was a malicious complaint against Ms NC.
The Worker appealed this decision to Mr LC, Head of HR Business Operations. There were two appeal meetings, held in an Hotel, during which The Worker was represented by SIPTU shop steward Mr NF.
Mr LC interviewed Ms NB as part of this appeal, and minutes from this meeting apparently show that Ms NB acknowledged to Mr LC that she had not been impartial.
Her appeal was not successful and the matter was referred to the Workplace Relations Commission.
Our member The Worker made a serious complaint in good faith in relation to her manager Ms NC.
She tried several times to resolve this issue informally by raising the matter with members of management. She did not find that the matters were dealt with.
On the instruction of the Operations Production Manager Ms EH on January 8th, she then submitted her complaint formally on the 18th January.
The Worker was never informed of an investigation into allegations against her, contrary to company disciplinary policy. Instead she participated in an investigation into her own complaint relating to Ms NC.
The employer concluded, with no evidence that The Worker’s complaint was malicious.
We strongly dispute this assertion.
To SIPTU’s knowledge no other employee has been disciplined for “malicious” accusations in Gas Networks Ireland.
The Worker believes that she has been victimized due to her role in WRC cases against the employer; specifically;
Her successful WRC case which involved the disciplining officer Ms NB.
Her role in SIPTU’s dispute of sick pay policy changes in which The Worker’s loss of two weeks’ sick pay was referred, which also involved Ms NB.
We note that two weeks’ pay was deducted from The Worker as a sanction by the employer, and that two weeks’ pay is the sum that was contested in the WRC by SIPTU.
Based on this we do not believe that the employer has treated The Worker’s complaint in a fair and impartial manner. Ms NB should not have been involved in disciplining the Worker. The Worker has apparently confirmed in a meeting with the appealing officer Mr LC that she had not acted impartially.
The Worker has claimed that Ms NB had previously advised Ms NC on how to deal with an annual leave issue that involved several employees. In her email to Ms NC she apparently described The Worker’s annual leave as “the problem”. The Worker believes that Ms NB was more sympathetic towards the position of Ms NC as a member of management than she was to The Worker.
We note that page 3 of the employer’s Dignity At Work policy prohibits employees being victimised for making a complaint under this policy. For management to deduct pay from an employee for making a complaint could have a chilling effect on other workers who have concerns that they need to raise.
We contend that the final paragraph of the investigation report is the only part of the report that deals with the alleged malicious intent of the Worker. The substance of the investigation is devoted to ascertaining the accuracy of the Worker’s allegations. The conclusion that the Worker’s complaint were maliciously motivated is not supported by any evidence outlined during the report.
The Worker does not believe that the investigation was fair towards her. She notes that email evidence submitted by her to the investigators were not included in the Appendix list of documents attached to the report. The investigators in their conclusion state that Ms NC “presented as very credible” which was a subjective judgement without any further details provided.
The Worker originally submitted her complaint under the Grievance policy, which does not provide for disciplining employees for alleged “malicious” complaints. It was the company that decided to pursue this issue under the Dignity at Work policy which does contain such a clause. The Worker has raised concerns that she was instructed by management to make the complaint with a view to disciplining her on this basis.
It should be noted that The Worker has not made the decision to lodge a grievance lightly, and had not submitted any previous complaints against Ms NC.
We assert that the relationship between the Worker and Ms NC should have been dealt with informally by management, as the Worker had requested. This case represents a failure of management to do so.
Summary of Respondent’s Case:
The Company owns, operates, builds and maintains the xxx network in Ireland and connects all customers to the network. The Employee is an Escalations Supervisor based in the Company’s premises in Dublin.
For the reasons set out in detail below, the Adjudicator is requested to reject this complaint in its entirety.
The Employee has made this referral to the WRC under section 3.31.4 of Response 2000 Procedural Agreement between XXX and the Group of Unions (“R2000”).
The Employee’s referral arises from her dissatisfaction with the outcome of a disciplinary process, which resulted in a disciplinary sanction imposed against her. The Employee appealed the decision and the decision and outcome was affirmed on appeal.
The Company has all times followed the procedural requirements of R2000 and the Company’s internal policies.
It is the Company’s position that imposition of a disciplinary sanction on the Employee was appropriate in the circumstances following a thorough procedure.
In January 2018, the Employee raised an internal complaint in relation to various interactions that were alleged to have occurred between the Employee and her line manager which constituted a contravention of the Company’s Dignity at Work Policy. Ms NB (Human Resources Manager) appointed Mr LD and Ms NO (the “Investigators”) to investigate the Employee’s complaints.
The Investigators interviewed the Employee, the Employee’s manager and other relevant employees within the Company and compiled an investigation report detailing the procedures adopted and conclusions reached (the “Investigation Report”).
The Investigators adhered to the requirements of the Dignity at Work Policy at all times and ensured that all parties were afforded natural justice and fair procedures throughout the investigation.
The Investigators adopted the following procedures, which are outlined in more detail at paragraph 2 of the Investigation Report:
· The Employee, the Employee’s manager and all relevant employees were interviewed by the Investigation Team;
· The Employee sought clarification on various points, and the Investigators replied substantively to these points;
· All persons interviewed by the Investigators were entitled to be (and were) accompanied by a representative at each interview;
· Minutes were taken of all interviews and interviewees were afforded the opportunity to comment on the minutes;
· The importance of confidentiality was emphasised to all interviewees;
· A draft investigation report issued, on which the Employee and the Employee’s manager were afforded the opportunity to comment;
· All information presented to the Investigators was shared with the Employee and the Employee’s manager (including their respective comments) and each individual provided final comments; and
· The Investigators considered all information received before producing a final report.
The Investigators considered each of the Employee’s allegations individually and arrived at findings in respect of each. One allegation was partially upheld, and the remaining 10 allegations were not upheld. In respect of the complaint partially upheld, the Investigators concluded that the Employee’s manager could not be criticised for acting in the manner that she did (arranging the movement of one of the Employee's direct reports without prior consultation), as the Employee’s manager was acting on the direction of management in making this decision.
Having regard for all submissions received during the investigation, the Investigators said that there was clear documentary evidence to refute the Employee ’s allegations, and that the Investigators had a deep concern “that [the Employee 's] complaint was not made in good faith and may constitute a malicious attempt to undermine her manager”.
Ms NB received a copy of the Investigation Report. Having reviewed the conclusions of the Investigation Report and noting the Investigators concern that the Employee’s complaints may have been malicious, Ms NB initiated a disciplinary process.
Ms NB wrote to the Employee on 30 May 2018, outlining the basis for the initiation of a disciplinary process and inviting the Employee to attend a disciplinary meeting on 8 June 2018. The Employee was advised that the process would be carried out in accordance with R2000 and the Company’s Disciplinary Procedure. The Employee attended the meeting (which ultimately took place on 12 June) where she was advised by Ms NB that she could respond to the Investigators documented concern that the complaints she raised about her manager were malicious. It is respectfully submitted that the Employee failed to avail of her opportunity to respond to this issue at the meeting.
Ms NB emailed minutes of that meeting to the Employee and afforded her the opportunity to comment. Ms NB also wrote to the Employee on 25 June 2018 inviting her to respond to five specific examples of the Employee’s evidence appearing to directly conflict with her manager’s in circumstances where her manager’s evidence was preferred by the Investigators.
A number of exchanges subsequently took place in relation to the content of the meeting minutes. The Employee did not respond substantively to the five specific points highlighted by Ms NB in her letter of 25 June 2018.
Ms NB considered the Investigation Report and appendices compiled by the Investigators along with the information gathered at the meeting of 12 June 2018 and exchanges between the parties thereafter.
Ms NB concluded that the complaint made by the Employee was in fact malicious and amounted to an attempt to undermine her manager. Ms NB imposed a disciplinary sanction of a written warning and a two week unpaid suspension.
By email dated 26 September 2018, the Employee appealed the imposition of the disciplinary sanction to Mr LC (Head of Human Resources). Mr LC met with the Employee on 15 October (after numerous failed attempts to meet in advance of this date). Mr LC also met with Ms NB and another employee in the Company before concluding the appeal. Mr LC concluded that the disciplinary sanction imposed by Ms NB was correct and should remain. A copy of the appeal outcome letter dated 4 December 2018 and the relevant supporting documentation is exhibited.
Findings and Conclusions:
In all of the circumstances of this dispute, I find that the disciplinary sanction is well within the band of reasonableness and therefore I recommend that the sanction remain as is.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I find that the disciplinary sanction is well within the band of reasonableness and therefore I recommend that the sanction remain as is.
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly