ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00012454
A County Council Employee
A County Council
Local Government Management Agency
Complaint/Dispute Reference No.
Date of Receipt
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 25th June 2018 and 26th February 2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
In accordance with Section 13 of the Industrial Relations Acts 1969following 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 worker has been employed by the employer since 1996. This dispute centres on the unfair treatment experienced by the worker since she submitted a complaint of bullying against her Line Manager in 2016.
An adjudication hearing on this dispute was arranged for 25th June 2018. After hearing the submissions from both sides and after some further discussion, it was agreed to adjourn the adjudication hearing for the worker to consider if mediation was still a viable option for her. The worker considered the matter but advised the Workplace Relations Commission that the option of mediation was no longer acceptable to her. A further adjudication hearing was scheduled for 16th October 2018 but was postponed due to the unavailability of the respondent’s representative. The complainant was subsequently unavailable between December 2018 and January 2019. The Adjudication hearing was rescheduled and took place on 26th February 2019.
Summary of Worker’s Case:
The worker’s position is that, since submitting a complaint of bullying against her Line Manager in February 2016, she has been subjected to repeated inappropriate and unfair treatment by the employer which has had a detrimental effect on her health and wellbeing.
The worker outlined a number of failings on the employer’s part in relation to the complaint she submitted and its investigation of same. The worker stated that management’s handling of her complaints was at variance with its own policies and procedures and the principals of natural justice.
The worker stated that there were significant time delays in the investigative process and that the employer had refused to enter into mediation despite stating in its policies and procedures that it is willing to engage in that process. The worker also stated that when an investigator was appointed, he unilaterally expanded his terms of reference to include a counter complaint that was made against her by her line manager and proceeded to carry out a “clandestine” investigation which resulted in findings made against the worker in the investigation report. The worker stated that she had also made a second complaint against another staff member and that that complaint was not dealt with at all.
The worker confirmed that she appealed the investigator’s findings on the basis of the investigator’s unilateral changes to his terms of reference and subsequent findings against her, the time delays throughout the process, the fact that her Line Manager had not been provided with the appropriate training as suggested in the investigation report and the fact that there was only one investigator appointed to conduct the investigation whereas the worker contends there should have been two investigators in line with best practice.
The worker confirmed that the appeal was upheld in relation to the expanded terms of reference of the investigation and the findings made against her as a result of the investigation were set aside.
The worker stated that despite the fact that the other grounds of appeal were not dealt with, she did not want another investigation as she could not go through that process again for health reasons.
The worker contends that as the relationship with the employer has irretrievably broken down, she does not feel that she can return to work and is seeking compensation in relation to her complaint.
Summary of Employer’s Case:
The employer stated that it processed the worker’s complaint in line with its policies and procedures. The employer contends that when it received the complaint and when the voluntary process of mediation was deemed not to be suitable, it followed its procedures in appointing an impartial investigator. The employer accepts there were delays in the process but that these delays occurred as a result of the number of witnesses mentioned as well as the intermittent unavailability of those involved in the process.
The employer accepts that the terms of reference were expanded by the investigator and that this should not have happened. However, the employer stated that it was not aware that this had occurred until it received the investigator’s report in December 2016 and the investigation findings in relation to the worker were set aside on appeal in May 2017.
The employer submits that the role of an Adjudication Officer is not to form a view on the merits of a worker’s complaint but to consider if the process carried out by the employer is in line with procedures that “conform with generally accepted standards of fairness and objecitivity”. The employer cited Labour Court Decision AD1377 (Bord Gais Eireann v A Worker) in support of its position in this regard.
The employer contends that the worker’s initial complaint was processed in line with its procedures but the second complaint, rather than being a complaint against an individual, was a complaint in relation to the organisation and the worker’s perception as to how the first complaint was being dealt with.
The employer accepts that the timing of the investigation report being issued to the worker just before Christmas was upsetting for her, but the employer felt that the worker was anxiously awaiting the report and that it should be issued to her without delay.
The respondent contends that the matter has concluded and that despite the worker’s assertions that she was denied fair procedures and natural justice throughout the process, the redress sought by the worker at the appeal was that the findings made against her in the investigation report be set aside, which was accepted and implemented by the employer.
The employer submits that the worker is seeking to terminate her employment and be compensated on the basis of how she was treated having made her complaint in February 2016. However, the employer does not accept that there is any merit in the complaint and is seeking that it be dismissed accordingly.
Findings and Conclusions:
In this referral, the worker outlined a number of procedural issues in relation to the employer’s handling of the complaints and in relation to the investigation process. The worker exercised her right to appeal the findings of the Investigator. In her appeal, the worker sought that the findings made against her in the Investigation process be set aside on the basis that the Investigator had unilaterally expanded his terms of reference to include a complaint made against the worker of which she was not aware.
The worker specifically stated to the person carrying out the appeal that she did not want a re-investigation into the substantive issues. The result of the appeal was that the findings made against the worker as part of the investigation process should be set aside.
I note the worker’s position at the adjudication hearing, that despite the fact that there were other issues that were not addressed by the appeal, she did not want a re-investigation of the substantive issues as she felt she could not go through that process again for health reasons.
The worker confirmed that she remains out of work on certified sick leave and is currently unable to return. The worker is also of the view that the relationship with the employer has irretrievably broken down and accordingly, mediation is no longer an appropriate option for her.
The employer stated that the complaint made by the worker against her line manager was dealt with in line with established policies and procedures. The employer outlined its reasons for the time delays in the process, however, it did not address the fact that it took almost six months from receiving the complaint to appointing an Investigator. I find that this was unfair, was at variance with its own procedures and added unnecessary stress and anxiety to the worker.
I note that the employer stated it was unaware that the investigator had expanded the terms of reference of his investigation until after it received the investigation report in December 2016 and that ultimately that issue and the findings made against the worker in the investigation were set aside at the appeal stage of the process. I also note that the employer acknowledged that the investigator should not have expanded the terms of reference for the investigation. However, due to the actions of the Investigator, the worker was subject to a further six months of unnecessary anxiety and stress.
The employer also acknowledged the upset caused to the worker when she received the investigation report at the beginning of the Christmas Holiday period, however, it was of the view that the worker was anxiously awaiting the report and felt it appropriate to issue the report to her for consideration.
Having considered the submissions of both parties, I conclude that there were significant time delays as well as procedural shortcomings throughout the grievance process and I fully acknowledge the stress and anxiety that the grievance process has caused to the worker. However, the investigation findings made against the worker have been set aside, which was the redress she had sought at the appeal stage of the grievance process. The worker has also stated that, despite other issues not being dealt with at the appeal, she does not want a re-investigation of the issues.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
In all of the circumstances of this dispute, I do not find that this dispute should result in the termination of the workers employment and the payment of compensation to her. I recommend that the worker accepts that the grievance process has concluded. I also recommend that the worker should consider returning to work in due course if/when she is declared medically fit to do so. The employer should provide every possible support to the worker should that be the case.
Dated: 31st May 2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey