ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017937
A senior service advisor
A car retailer
The HR Company
Dispute Reference No.
Date of Receipt
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Dates of Adjudication Hearing: 11/01/2019 and 13/03/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 9th November 2018, the worker referred a dispute to the Workplace Relations Commission. The dispute was heard at adjudication on the 11th January and the 13th March 2019. The worker was represented by Gavan Mackay, solicitor and one witness (referred to in this decision as ‘the colleague’) attended on her behalf. The employer was represented by the HR Company and six witnesses attended. They are referred to as the Managing Director, the line manager, the service advisor, the Financial Controller, the foreman and the warranty administrator.
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.
This is a dispute pursuant to the Industrial Relations Act regarding bullying and harassment in the workplace.
Summary of the Worker’s Case:
The worker outlined that she commenced in September 2015 as a service advisor and reported to the line manager. This dispute relates to how she was treated by the line manager.
At their meeting on the 2nd May 2017, they discussed administration errors and she took these on board. The line manager told her that he could find many more mistakes of hers, but only gave details of two. The worker asked for information about the others and took notes at the meeting.
The line manager also raised the issue of colleagues complaining about her. This upset the worker and she asked for details of these complaints. This was more serious to her than the administration mistakes. The line manager said that the worker had to take this feedback. The line manager said he was giving her a verbal warning and she was placed on probation for six months. There was no follow-up correspondence on this.
After this, the worker asked the people she worked with whether they had a problem working with her. They said ‘no’. She learnt that while she had been on annual leave prior to the 2nd May meeting, the line manager had asked them to list her mistakes and any problems they had with her.
In August 2017, the line manager raised the need to correct two credit notes but told the worker that there were others needing correction and that the client had threatened to pull their account. The worker did not accept that this was the case. She corrected the two credit notes and rang the client and apologised for any mistakes. The client replied that it had not made a complaint and there was no problem.
In September 2017, the worker learnt that the line manager was telling staff that the worker had said to him that they would not cope when another staff member left. The line manager had spoken to the worker about his fear of the colleague not being able to cope once this staff member left. The worker had reassured the line manager that the colleague would cope. It was untrue for the line manager to recount something she had not said.
In another incident, the worker had queries about the forms to be used on a new public sector account, when the line manager approached her aggressively regarding the email. The line manager said that she had irritated him with her questions and he swore at her. The worker said that this behaviour was common.
In October 2017, the line manager asked her into his office and showed her mistakes in care plans uploaded to the manufacturer. There were mistakes, but the line manager blamed her for 90% of them. She said that other people were making mistakes, but she was being lashed out of it.
There was an incident with the account of a high-profile public body when a van needed a new battery. They ordered a new battery, which would arrive that afternoon. The worker completed a job card without the mileage as the public sector worker had to leave immediately. The line manager criticised this omission and said that she would no longer be dealing with this account.
There were incidents in late November and December where the line manager criticised how she did her job. One incident took place on a Friday as the worker was about to leave. The line manager was criticising her work, so she took screenshots to protect her. In one incident when the customer had not indicated which brake pad they wanted, the line manager verbally abused her, saying that he would be ‘better f***ing yous out’.
On the 2nd February 2018, the worker was completing a credit note and was asked by a manager to close off the account. It later showed up on the outstanding cash report and the line manager challenged her on this. She tried to explain to him that she had done this for another manager. The line manager replied that he ‘would fix up my [the worker’s] shite’.
The worker then went out sick as this was the final straw. She was diagnosed with shingles and the medical staff spoke to her about her stress. The line manager later greeted her return to work by saying that the office was ‘great’ in her absence.
The worker outlined that an issue arose for a customer when oil leaked from her car on the way home. The garage had to tow the car and they offered to replace a tow eye cover as compensation. The customer was a palliative care nurse, and the breakdown meant that she missed being with a client as they died. The worker recorded this as a ‘goodwill’ invoice. The line manager later challenged this decision and verbally abused her for this.
The worker said that the service advisor had witnessed the line manager’s behaviour and told the worker that she would have ‘decked’ the line manager for what he said.
The colleague then resigned, and the line manager said that the ‘lads’ were unhappy with her. He also mentioned that the lads had their own whatsapp group separate to the general one.
In one incident, the line manager was showing staff images on his phone. One was of a penis, and the worker said, ‘why are you showing this to me’. The line manager would also make smart remarks about colleagues’ private lives.
The worker said that there was nothing in writing about her performance. The line manager was consistently aggressive to staff members, including her. The line manager had wanted her to do other duties without relieving her of any duties. On her last day, the worker mentioned to the Managing Director why she was leaving. He replied that he had not heard any issues with her performance. The worker handed in her notice and said that she had had enough of working in this ‘toxic atmosphere’.
The worker outlined that she was not aware that a named staff member had raised issues about her. It was odd for this colleague to say that she should be the senior service advisor. She was not aware of any issue with this staff member as her issues were also general ones.
The line manager had told her that a named male colleague had raised a mistake she had made but did not specify which mistake. The worker asked this staff member, who replied that he had not raised any complaint about the worker. No specific issues were raised about the worker’s performance.
The worker accepted that on one occasion, she had asked for a job card to be hidden from the line manager as recorded in the text messages. This had occurred once.
The worker said that in the three years of her employment, no one questioned her commitment to the role or her performance or her dealing with customers. She had asked for details of all the mistakes, but this was not forthcoming.
Questioning of the worker
The worker confirmed that the Managing Director and the Financial Controller were nice people. She had wanted to speak to the Managing Director but was afraid of the consequences at the hands of the line manager. Things were tough enough and she did not want to make things worse. At certain times while she worked at the employer it was toxic.
Raised voices could be heard in the open plan area, but not in the line manager’s office. It was put to the worker that the Managing Director had only heard her voice raised in banter; she replied that she did not know what the employer meant. Other colleagues were aware what was going on. She was not aware that the Financial Controller dealt with HR and did not approach the Managing Director as she was afraid of the consequences.
It was put to the worker that the Managing Director could not find evidence of a toxic workplace, except for what amounted to a manager managing performance. The worker did not accept that this was the case. She had taken any performance issues on board. In response to what the line manager had said, she set up a folder to manage care plans, but was told to delete this. The worker said she implemented any procedures circulated to staff. The worker said that she had been singled out but not told specifics of any poor performance.
In respect of the good will gesture, the worker said that she had considered giving the nurse her next service for free, but she was on a care plan. They agreed to offer a tow eye cover, costing €30. It was put to the worker that there was no problem with the gesture but that it should have gone up the line. She replied that she did it to keep the customer happy.
The worker said that she asked the line manager about the 50 mistakes during the May office meeting which discussed two specific mistakes. He would not give her details of the mistakes. She started to keep a diary in 2017 after the first meeting. The worker said that the diary was the basis of this complaint but that it was not submitted to the employer or at the adjudication. She outlined that the line manager had approached the two staff members regarding her mistakes, but they did not give him anything.
In respect of a named fleet, the worker said that when they book in their cars, the service office phoned for an order number and then emailed the invoice. She was handed two credit notes to prepare and sent them to the fleet. The fleet had said that there were two errors and not the 20 cited by the line manager. She said that the line manager was trying to create divisions between her and the colleague, for example when a named staff member left the team.
In respect of the comment of “stop talking shite”, this related to a public body account and the worker had to email a staff member in accounts. The line manager approached the worker to say ’what the f*ck is this’ and she answered that she was looking for a particular form but could not locate it. His voice was slightly raised. The service advisor and the colleague heard this.
The worker said that customers with care plans are not charged and are provided with blank invoices. The line manager said she had done lots of these wrong, but she asked for the documentation about these mistakes.
The worker said that the line manager criticised the service advisor, saying she was cheeky and would phone in sick. When the line manager said he was going to fire the service advisor, the worker just replied, ‘you’re the boss’.
The worker said that she had been crying on the 13th November when a staff member in accounts advised her to speak with the Managing Director and that the Managing Director had dealt with other complaints.
The worker said that she took screenshots and emailed them to keep a record. She took screenshots to show her completed work and did not leave many jobs open. She said that staff members had told her that the line manager would root through her desk after she had left on a Friday afternoon. This was why she messaged for a job card to be moved, so that the line manager would not have a fit.
In respect of the 2nd January 2018, the worker said that the shouting took place in the line manager’s office and she was not sure if people heard it. She had never said that there were people present at this incident.
The worker said that the line manager made the comment about things going smoothly in her absence on the Tuesday or the Wednesday of the week of the 19th February.
The worker said that she had not received an exhibited whatsapp message of the 16th February.
The worker said that on the 29th May, the line manager had said that the colleague was not a loss to the company and that the technicians did not get along with her. The line manager said that there was a separate whatsapp group for the guys.
The worker said that on the 1st June she raised how she was treated by the line manager and his language.
Regarding the image on the phone, the worker said that she came downstairs and the line manager had showed the picture to the service advisor and the colleague. She joined the conversation and the line manager then showed her the picture. The worker was not part of the external investigation into this incident. She commented that the reference to the “private lives of individuals” arose because the line manager would slag all of them about their private lives.
The worker said that she spoke with the Managing Director on the last day of her employment. She told him of the problems with the line manager. She took this case to the Workplace Relations Commission because the line manager had slated her in his report. She said this report was a lie. She had given her all to that job.
It was put to the worker that she took this case because the colleague had received a settlement. The worker rejected this. The line manager had made her life a misery. He got annoyed when she approached him for help. The line manager humiliated her.
The worker was asked why she kept a diary but did not make use of it. She replied that she had used it in preparing this case. No one else had documented these issues. The final nail was the line manager’s report about her.
The colleague outlined that she commenced in May 2016 and worked with the worker. The colleague said that the allegations made by the worker were true as she had witnessed them.
The colleague said that the line manager had asked her and another staff member for evidence against the worker, for example relating to mistakes. The colleague said that she observed the line manager being in the worker’s face and going mad about something. The colleague said she was afraid to make a mistake as the line manager would make her feel useless. The colleague was afraid of the line manager and he threatened her with her job, including in conversations when she was alone with him. The line manager flipped out when something did not go right. He would call the team “retards” and called her a chicken. The colleague confirmed that the line manager had shown her the explicit photograph on his phone.
In questioning of the colleague, she said that the line manager was aggressive to her on a regular basis. She confirmed that the worker was a friend of her mother’s via football, but the colleague had not known the worker before they worked together. The line manager treated her like a baby and said that she cried like a baby.
The colleague described the Managing Director as an absolute gentleman and that the Financial Controller was fine. The colleague said that she was afraid to take the issues to them as she would have been left with the line manager in the service department. The colleague left because she could not take it anymore.
In respect of the public body account, the colleague said that she uploaded cards. While the worker had made a mistake on one occasion, there were no other mistakes. She accepted that she turned down the volume of her phone as she was talking to customers at her desk, but that this was a rare occurrence. She outlined that the line manager had bad-mouthed her at the time the other staff member was leaving the company.
In closing submissions, the worker referred to the test for bullying set out in Ruffley v Board of Management of St Anne’s School  IESC 33. She outlined that multiple incidents were brought to the employer’s attention and corroborated by the colleague.
Summary of Respondent’s Case:
In submissions, the employer outlined that the worker resigned on the 8th June 2018, raising no issues at this time. Her colleague took a separate WRC complaint, which settled. The worker lodged her own dispute four days after the scheduled date of adjudication of the colleague’s complaint. The employer outlined that it wrote to the worker’s representative on the 21st November 2018 to ask for additional information to facilitate their investigation of the issues she raised. The letter of the worker’s representative crossed with this correspondence, but the details were scant or out-of-time.
The employer carried out an internal investigation, which concluded that per the Dignity at Work policy, there was no evidence of repeated inappropriate behaviour that would constitute bullying. It cited that the displaying of inappropriate images was instigated by the worker.
The employer referred to the investigation carried out into the worker’s issues as well as the external investigation carried out following the colleague’s complaints. It did not accept that the worker was bullied or harassed by her line manager or at the workplace. It stated that the worker was ‘incapable of doing her job and her performance standard was way below that of her colleagues, her ability to mislead and conceal documents was part of her normal practice and all her colleagues were aware of this.’
The employer concluded that the line manager was guilty of no more than frustration and perhaps for not dealing with issues via the disciplinary process. The employer acknowledged that the worker had been crying and a staff member in accounts advised that she approach the Managing Director or Financial Controller. This staff member was later surprised that this did not take place.
The employer referred to minutes of interviews with staff, which stated that the worker was continuingly making mistakes and that there was a higher level of customer satisfaction after the worker left. It further commented that the worker’s sickness absence between the 4th and 17th February 2018 was not stress-related, as claimed, but certified as being because of shingles.
The employer referred to whatsapp messages from the worker to the service advisor, asking to hide information from the line manager. This service advisor stated that the worker would become stressed over nothing and would panic.
The employer concluded that the line manager did not bully or harass the worker. The line manager was addressing her performance informally in line with his style of management. The employer cites ‘let’s not lose sight of the fact that [the worker] was with the company 3 years and during this time was a poor performer by anyone’s standards, consistently hid her mistakes and more than one occasion lied to distract the focus being on her.’
The employer outlines that this claim arose from the compensation paid to the colleague. The employer stands by the preceding external investigation report and the internal investigation report into the worker’s case. There was no infringement of the Dignity at Work policy.
The service advisor
The service advisor said that she did not witness bullying. She got on with the worker and would not have stood there, doing nothing. She worked across from the worker’s desk. There were confrontations but nothing explosive. She could hear conversations in the office if she was not on the phone. She could hear the worker, who was naturally loud.
Regarding the photograph, the service advisor said that she had not wanted to view it and they had all been sitting there together. She described the line manager and the Managing Director as being very approachable and it was a great place to work. The witness outlined that the line manager sorted out a situation when a comment was made against her. The service advisor said that staff all struggled at some stage and she and the colleague would approach the line manager quicker, while the worker would try to do it herself.
In respect of the minute of the 20th December investigation meeting, the service advisor could not say how many mistakes the worker made. She would notice the mistakes at payment stage. She started in June 2017 and when she made mistakes, she was shown by the line manager, the worker or others what to do. The service advisor would spot the worker’s mistakes, or they became apparent later. She said that the worker asked her to hide documents a couple of times, explaining that this was because of how the line manager would react.
The service advisor was asked if the line manager was approachable, why would the worker be hiding invoices from him; she replied that the worker might leave things so that it would be too late to go to the line manager. The worker made mistakes but was under pressure.
The service advisor was referred to the texts of February 2018 and her reference to “witch hunt”; she replied that the worker had told her the line manager would go mad, but the service advisor had never heard this. She raised this during the external investigation. She used the term “witch hunt” as this was what the worker had told her. At this time, she had asked the worker to be her reference and was not fully confident about her new role with the employer. The service advisor said while the line manager and the worker would clash, it was not explosive. Everyone had laughed at the photograph incident.
The line manager
The line manager said that on a personal level, he liked the worker and they would have a good laugh together. The worker had a poor work ethic and made mistakes. The line manager tried to address the mistakes. His emails were addressed to all three sales advisors.
In respect of the picture, the line manager said that the worker was at her desk and showing a picture on her phone. He showed the picture on his phone. The worker found it hilarious and showed it to the two lads who were with her at the time.
In respect of one public body, the line manager said that the setting up of an account was the same process for everyone. The public body would send a vendor form and they sent them the account application form. You could look up the account and there was no reason for the argument described by the worker. The line manager said that he did not approach her in the way she described.
In relation to the fleet account, the line manager outlined that they would attach a Purchase Order to each job and they would agree with the client a price and email them the invoice. When a credit note was required, this was done by accounts and not by the service department. It was the staff member in accounts who would email. On this occasion, two credit notes were needed. He said that they would never do 18 or 20 in one day.
The line manager said that he does not scream or shout. He does not use bad language a lot. He never dresses staff down. There were heated moments after he showed someone a task many times but were still problems. He was frustrated. He managed about 30 staff. He took notes of performance issues.
The worker started on the phones, but the line manager moved her after she complained of the volume of calls. He came up with a plan to move the worker to a back office so that she could catch up on paperwork.
In respect of the other public body account, the line manager said that he looked after the account and service staff checked into the account. They were not able to do anything on this account unless they had authorisation. He said that the event described by the worker could not have happened.
The line manager said that they did a daily whip to make sure cards were ready for customers coming in. They would have the paperwork to hand. He said that it was regular that the worker would not have a job card ready. On a Friday, there might be three or four not done. The worker might have 65 outstanding, and these should be reducing. The line manager said that he would access them on the computer and clean them up. He denied going through her desk as he was too busy. He did not know anything about the car the worker whatsapped to hide the paperwork on.
In respect of the issue of the 2nd January 2018, the line manager said that this was the most enjoyable time of year. People are refreshed after Christmas and customers come in to collect their new cars. Even though the worker made mistakes, they needed three advisors and it was tough when one was away. The line manager is 20 years in the company and there were no complaints against him. He acknowledged one or two issues and they have high standards. He would reprimand people but never bullied people.
In questioning, the line manager said that when he confronted the worker about her mistakes, she would always have a story, but they were lies. He and the worker got on normally but there were issues when he confronted her mistakes. He might run staff issues by the Financial Controller, including when he asked the worker to a disciplinary hearing. He should have followed through with the disciplinary process but did not want to sack the worker. He started the disciplinary procedure in May 2017. He had the notes of the worker’s mistakes and the incidents, compiled on 24th April 2017. They were sent to the worker before she went on holidays.
The line manager said that he did not have notes with him relating to the worker’s performance issues in May 2017. He had dealt with the issues and did not document them. It was put to the line manager that he had notes prior to May 2017, but not of other issues. He replied that he had discarded the notes and felt he could help the worker. He had initially appointed the worker as she had experience. There were many mistakes and he should have put the worker through the disciplinary process.
The line manager accepted that the colleague had made serious allegations against him. He acknowledged that the external investigator had upheld some of the complaints and there was time to appeal these findings.
In respect of the notes of the 26th October 2018, the line manager said that he did not have a problem with the worker’s sales figures and they were better than the colleague’s. He said that the colleague complained to him a lot about the worker. He took notes when the worker was making mistakes. He said that he did not log the complaints made by staff about the worker. He could see the issues himself and would address them. He said that he did not include the worker’s mistakes in emails as he did not want to belittle her as a senior person. The meeting arose following the worker attaching a wrong document and making a mistake in the invoice folder. The line manager was asked why not email the worker directly about mistakes; he replied that he had called her into the office.
The line manager said that showing the picture was not appropriate and that the worker had laughed it off. He said that he should have instigated the disciplinary procedure against the worker as she made a lot of mistakes. She was also good with customers and there were many good things with her.
It was put to the line manager that he was saying the worker was a compulsive liar and responsible for 99.9% of mistakes; he agreed and said that in hindsight, he should have referred this to disciplinary. He did not agree that there was no evidence of her being a compulsive liar or responsible for so many mistakes.
It was put to the line manager that he had said that the worker made 8 to 10 mistakes per day. He replied that he could not put a number on it, but she made a lot of mistakes on a daily basis. He did not want the worker to lose her job or to leave. There was a lot of training gone into staff. They started the disciplinary process on the 24th April 2017 and should have followed through. He did not like sacking people.
In respect of the letter of the 21st November 2018, the line manager denied saying to the worker that she made 50 mistakes. He had documented four mistakes. The colleague had brought other mistakes to his attention, but he did not raise these. The line manager said that he had no note of the meeting of the 24th April. He had the letter and the worker accepted that this took place. It was put to the line manager that he never wrote to the worker to tell her of the sanction; he replied that this was an informal warning for six months, so it was not documented.
The line manager denied saying to the worker that things were easier when she was away on holidays. He denied driving a wedge between staff. He said that the worker and colleague were friends, but the colleague complained about the worker on a daily basis. He said that the colleague had wanted to be the senior advisor. He said that any conversation he had with the worker was to address mistakes. He sought to address these individually and not in the presence of other staff members.
The line manager was asked why would the worker seek to hide a document from him; he replied that he would be trying to find a card and the worker would say that it was someone else’s client, but this was not true. He said that she might try to hide things, because he had provided her with so many work plans. He said that if he ‘went off on one’, this was constructive and work-related.
The line manager said that he had used the word ‘retard’ to a mechanic who had used the word with him. It was not said to the worker. He did not curse at the service staff and denied this allegation. The worker and the colleague had given contradictory accounts of who was present at the alleged incident. He did not speak about people’s personal lives.
The foreman said that he got on with the worker and what is being said about the line manager was untrue. He worked for the line manager for nine years and he has been foreman for three years. The line manager has not used bad language and is calm. The line manager calls a monthly meeting and would have notes. The line manager would go through issues on a generic basis without singling people out. The line manager would then discard the notes. Incorrectly invoiced jobs affect bonuses and the foreman would bring things to the worker’s attention. The foreman said that he never saw the line manager shout at the worker. The foreman would be in and out to reception every 10 minutes. He said that there would be slagging back and forth, for example about his height.
In questioning, it was put to the foreman that his statement of the 8th January 2019 refers to keeping a record of many mistakes, but he only mentions two mistakes. He replied that the worker told a customer that the car was under warranty and that the customer was to be charged for two hours. The foreman suggested that the worker could discount this to 90 minutes labour. The foreman said that while he did not work directly with the worker, he saw her make a lot of mistakes and it affected their work. He did not agree that she was entirely competent. He said that he was in charge of two workshops and 15 staff. He could recall more than the two mistakes he previously raised
The Chief Financial Officer
The Chief Financial Officer said that neither the worker nor the Colleague ever came to her with complaints. She said that no one is afraid of her. Her only dealings with the worker was in in the canteen where they would chat. She never saw an issue with the line manager and she had observed them during a first aid course. She said that the Managing Director is approachable and present on the floor. The staff member in accounts also never approached her about what she had witnessed. In respect of the incident of the 2nd February 2018, there was no reason for the line manager to be angry.
In questioning, the Chief Financial Officer said that she was not in the line manager’s office on the 2nd February 2018. It was put to the Chief Financial Officer that the staff member in accounts was the only person who has given evidence in the worker’s favour, but she was not at the hearing; the Chief Financial Officer replied that the staff member in accounts had not worked directly with the worker.
The warranty administrator
The warranty administrator said that she raised issues regarding the worker’s work as they arose. She raised this with the line manager and asked what they needed to do. While the emails did not use the word ‘mistake’, they were sent in order to address these issues. She asked the worker about mistakes with job cards and bookings. The warranty administrator said that she probably saw mistakes every day and dealt with them as they arose. She said that they had to second guess what the worker had told the customer when doing the invoice. The warranty administrator said that she had no record of what she raised with the line manager about the worker. She commented that it was busy.
The warranty administrator said that she had the worker’s lies in writing. There would be occasions when the warranty administrator would go to the ‘work in progress’ folder and asked for the customer to be called. The worker would say that she could not contact the customer and when she did contact the customer, she would not update the system. The worker would deny booking the customer.
The warranty administrator discussed with the worker her mistakes and it is a busy environment. They got the job done and there was no time for paperwork. She said that the ‘work in progress’ file decreased after the worker left and there is now greater customer satisfaction. She had hoped that things would change with the worker’s performance.
In closing submissions, the employer outlined that none of the conditions in the Ruffley case arose here. The employer outlined that this was a fictitious claim as the worker had seen the gravy train from the colleague’s case. The worker has made unfounded allegations and a man’s career is on the line.
Dignity at work investigation
By letter of the 21st November 2018, the employer outlined that the worker had left on amiable terms following her resignation in May 2018. Further to the worker’s letter of the same date, the employer investigated the issues raised by the worker. This led to the investigation report of the 9th January 2019.
The investigation report sets out that the investigation relates to the allegations of misconduct made against the line manager in the worker’s letter of the 21st November 2018. The line manager, the service advisor, the staff member in accounts, the warranty administrator and the foreman were interviewed during the investigation.
The report states that the worker was constantly making mistakes, misled colleagues and caused problems in the Service Department. The worker was advised to report her concerns to senior management, but she did not do so. The worker did not indicate the seriousness of her concerns at the time she resigned. The worker had merely stated that she could not deal with the stress of the job and that she had not worked well with the line manager.
The report cites that the line manager had not badmouthed the worker, and nor had he sought to create division. The report states that there was not sufficient evidence to support the worker’s allegations regarding statements made by the line manager, and any remarks were slagging.
The report sets out the details of the investigation meeting with the line manager. He said that he only found evidence of staff approaching the line manager about the worker’s mistakes, and no evidence that the line manager had asked staff about the worker’s mistakes. The report noted that while there were heated arguments, there was nothing explosive. The report points to the lack of witnesses to the incidents described by the worker.
The report acknowledged that the staff member in accounts said that the November 2017 incident took place, but also noted that the staff member in accounts advised the worker to report this to the Managing Director and the Financial Controller.
There were no witnesses to other incidents and the worker had not asked for help from colleagues, for example, when the worker gave the service advisor a lift home.
The report stated that the line manager accepted that the incident of the end of April/early May occurred but denied that he cursed. The line manager accepted he reprimanded the worker for the mistake and for lying. The report stated that the messages on the workshop whatsapp group had been read and there was no reference to any staff member.
The report states that the worker needed continuous direction on foot of not carrying out assigned duties. The worker made more mistakes and needed constant attention. She had not followed procedure and two witnesses identified that she had asked for job cards to be hidden.
The report concludes that there was no evidence of repeated inappropriate behaviour that could constitute bullying. It concludes that the worker instigated the showing of inappropriate images and this did not amount to harassment.
Findings and Conclusions:
This is a dispute pursuant to section 13 of the Industrial Relations Act, 1969. It relates to bullying and harassment in the workplace. The dispute was referred on the 9th November 2018 and the worker’s employment ended on the 8th June 2018. I have set out above, in detail, the evidence and submissions of the parties.
The dispute centres on the treatment of the worker by the line manager during the course of her employment. The worker, the line manager and the other witnesses took great care to set out their evidence as to what happened during the course of the employment. It is fair to say that there was a substantial gulf between what they say happened.
The most striking aspect of this case is that witnesses suggest there was persistent criticism of the worker’s contribution to the workplace, while there is no documentary evidence to support this criticism. It is striking that the line manager sought to rely on the disciplinary procedure in May 2017 over two incorrect documents, when later alleged transgressions were left without any documentary record. There is much paperwork associated with this case, but it is notable that there is little documentary support of other mistakes.
It is striking that a performance review process should start out as a documented process in May 2017 (even if leading to a verbal warning) only to be followed by an entirely unwritten, informal process. The evidence was that the line manager’s ‘style’ was to deal with issues informally and verbally. This means that a performance review was not a cool, calm and collected review of the documents associated with a transaction, but a verbal intervention from management to the employee. (I note that much of the worker’s role was documentary-based, for example recording customer requests or completing job cards.) To the worker, the interventions were a bullying event and overbearing; to the line manager, they were borne of frustration. Either way, the failure to document so-called mistakes led to performance management being a highly charged verbal interaction between management and employee, when it should have been a cool, calm and collected discussion.
There were certainly different interpretations of the nature of the interactions between the line manager and the worker. Even the evidence gathered by the employer shows that this led to the worker being in tears following an interaction with the line manager. Moreover, the worker’s evidence was supported by that of the colleague. There is no documentary evidence of any litany of mistakes. I accept the worker’s evidence of the effect management’s interventions had on her. I also accept the worker’s account that her motivation for taking the case to the WRC arose from the criticisms of her performance in the defence to her colleague’s claim.
The worker resigned and later raised the issues of how she was treated. These issues were investigated and culminated in the report of the 9th January 2019. This found that the worker’s complaint was not well-founded.
It is certainly the case that the line manager’s interventions were forceful; on the employer side, they were described as a ‘clash’ and leading to the worker being visibly upset. Even discounting the evidence of the worker and the colleague, it is clear that there was an issue in this case.
The worker and the colleague gave a coherent account of the events and how it made the worker feel. While there may have been frustration on the employer side, this was not borne out by the documentation one would expect to see.
It follows that the merits of the dispute warrant a recommendation in the worker’s favour. I note that substantial criticisms were made of the worker’s performance, but this was not supported by documentary evidence of the gravity and extent of the alleged mistakes. The documentation points to a few mistakes and no more than anyone else. I also note that this was a matter raised late in the day by the worker and well after the ending of the worker’s employment. While the employer investigated the issues, it did not address the absence of evidential corroboration that the worker’s performance was below par.
Taking all these factors into account, I recommend that the employer pay to the worker redress of €5,000.
In respect of the image shown on the phone, this is certainly a concerning event. This, however, is not a harassment claim pursuant to the Employment Equality Act. As a once-off event, it would more than likely be out of time for such a claim. No complaint was made at the time to the employer, so I recommend no award in respect of this element of the dispute.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer pay to the worker redress of €5,000 in respect of this dispute pursuant to the Industrial Relations Act.
Dated: June 29th 2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Industrial Relations Act
Bullying and harassment / Performance management