Worker

Employer

Anonymised Parties

A Kitchen Manager

A Café

Representatives

Self

Gerry Mitchell HR Consultant

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969

IR - SC - 00007656

19/03/2020

The Worker referred a dispute on 19th March 2020 with respect to bullying and harassment procedures.

The Worker referred a number of complaints against the Employer to the Director General of the WRC on three separate dates in 2019 and 2020. The within dispute was heard in conjunction with these complainants.

The Employer ceased trading in March 2020 after the Government pandemic guidelines forced closure of indoor eating. In February 2021, the Employer initiated the process of voluntary strike-off. However, the process did not conclude as the Worker objected to the voluntary strike-off procedure.

The Worker submits as follows.

The Employer was aware of the Worker’s sick leave due to work-related stress and continued with the patterns of behaviour leading to psychological injury which could have been prevented if they ceased their bullying and discriminative acts. The Employer did not “respond reasonably to each incident as it arose”. The Worker listed a series of concerns she had in this regard.

The Worker asserted that the Employer fabricated accusations to try and defame her reputation which is contrary to a director’s fiduciary duties to employees and is an aspect of bullying and discriminatory actions. The Director’s actions were negligent of his duties under the Companies Act, 2014, the Health and Safety Act, 2005 and are tortious in nature.

No steps were taken to prevent mental injury which is an obligation of an employer as per the Hatton principle, no safety statement or handbook was in existence. The Worker submits that there was no dignity at work policy in place.

The Worker asserts that clearly all actions taken by the Employer were a reaction to her pregnancy news which is direct gender discrimination.

The Worker submits that since this situation occurred, she has not worked in the hospitality sector, this situation has had an extremely horrific impact on her. She has struggled to find work and had numerous industry workers ostracise her based on what the Employer shared with them. The psychological impact tied in with the defamation has had a serious impact on the Worker’s ability to earn a livelihood.

The Worker asserted that the Employer had no grounds to suspend her as the investigation of the alleged fraud was not the Employer’s investigation but the Departments of Social Protection. She said that the mediator engaged by the Employer did not give her the complaints against her and disputed the Employer’s assertion that she was presented with the complaints in a named hotel by the independent mediator.

The Worker relied on the following case law in her submission:

Sweeney v BOM of Ballinteer Community School, Walker v Northcumberland County Council [1995] ICR 702, Maher v Jabil Global Services Ltd. [2008] 1 IR 25, Martina Palmer v Kilmormac Development Association Ltd. ADJ-00027560, McCarthy v Dublin Corporation [2001], Boyle v Marathon Petroleum (Ireland), Kelly v An Post, O’Malley v Aravan School Longford v Westmeath ETB, Dublin Lettings & Management v Warren Richards.

The Employer submits as follows.

No attempt has ever been made to dismiss the Worker. The Worker was spoken to in relation to two formal complaints of bullying in the workplace that had been made against her by a staff member and a member of the public. On investigating the claims under the Employer’s procedure, the Worker was given time to respond to the allegations. The Worker denied all knowledge of the incidents initially and then denied that they happened as detailed in the complaints and provided her own explanation of events. Management interviewed the staff involved and customer who made the complaints and found considerable evidence to support that claim. Management, having sought advice, issued the Worker with a verbal warning as to her behaviour in the workplace. The Worker refused to accept the warning at a formal meeting and in the week after the meeting, the Employer received the first of the complaints that the Worker submitted to the WRC, this continued for months, with more and more complaints.

Under the guidance of the solicitor, the Employer engaged an independent mediator in an attempt to resolve the issues raised with the bullying complaint and the issuing of verbal warning. The mediator initially met with the Complainant and two Directors of the Employer separately for a first session. Then in multiple sessions he interviewed all staff members. Arising from this exercise, 9 out of 12 staff (14 staff in total including Directors) came forward wanting to submit formal complaints against the Worker’s conduct in the workplace. In addition, the owner of the commercial kitchen which the Employer rented also came forward with a formal complaint following an incident between the Worker and her own staff. The Employer confirmed that the mediator presented the Worker with the allegations against her at a meeting in a named hotel.

The mediation exercise had to be suspended when the Employer was approached by an Investigator from the Department of Social Protection who had some questions about discrepancies in the Worker’s claims. The Employer was provided with letters and forms supposedly written and signed by the Director indicating that the Worker was only working part-time and that no further hours were available to her. Timesheets which the Worker was submitting showed different hours to what she had actually worked. The Employer was advised by its solicitor to suspend the mediation and begin an investigation into a possible gross misconduct by the Worker.

Another HR consultancy firm was engaged to conduct this investigation. As the Worker was at advanced stages of pregnancy it was decided to make the introductions and inform the Worker that the investigation would not proceed until she returns from maternity leave. In line with the Employer’s policy, and on the advice of the mediator, who said that the Worker should not be rostered at this point, the Worker was suspended on full pay until the point that her maternity leave began.

At that point, the Worker submitted a grievance alleging that the Director of the Employer had engaged in stalking her, in workplace discrimination, in bullying, and in undermining her position at work. The Employer was also informed by the local Garda Station that the Worker had sought to report the Director for stalking her. The Gardaí did not proceed with any investigation.

Arising from these hugely disturbing allegations, the Employer engaged another HR Consulting company to independently investigate the Worker’s allegations. The Worker was invited to partake in this investigation but did not cooperate in the process. The investigator interviewed the Directors and the staff. He issued a report with his findings which found no evidence whatsoever to support the Worker’s allegations.

The Report was sent to the Worker. She refused to accept its findings and accused the Employer, the company accountant, the company solicitor and the independent investigator of being in cahoots and behaving inappropriately to compile falsified evidence against her and her complaints.

The Worker lodged an appeal against the outcome of the report. The Employer engaged services of another independent HR consultant to conduct this appeal. However due to the Worker’s pregnancy, the HR consultant simply initiated introductions into this appeal, but felt it would be more appropriate to conduct same once the Worker finished her maternity leave. However, this never got to happen, along the investigation into gross misconduct, as the Employer ceased trading before the Worker’s maternity leave was over.

The Employer spent a considerable six figure sum on dealing with the Worker’s allegations, legal fees, mediation, and HR consultancy company to investigate the allegations. Monies that may have saved the business. Instead, the business is closed, staff lost their jobs, management lost their business, savings and jobs. Furthermore, whilst the WRC matter remains unresolved the Employer is unable to strike off the business with the CRO and undertake the final stapes to shutting down.

The Worker was not dismissed because of her behaviour or performance. The Worker’s employment (and that of 13 others) was ended because of the closure of the business, brought about by challenging trading conditions and ultimately by the catastrophic impact of Covid-19 pandemic.

The Employer asserted at the hearing that it treated the matter of the alleged fraud seriously. It could damage the Employer’s reputation.

I have given careful consideration to the written and oral submissions of the parties in relation to this dispute.

The Worker submitted her complaint to the Director General of the WRC alleging that she has an industrial relations dispute regarding bullying and harassment procedures.  

The Worker’s dispute is based on the same facts that are contained within her complaints that were separately referred to the Director General under other pieces of legislation and were dealt with separately as appropriate. The Worker has already sought redress in respect of the claims under the relevant statutory framework. This recommendation will, therefore, deal with the matter of alleged bullying and harassment in the workplace and procedures as per the Worker’s complaint and will not revisit other claims raised in the Worker’s submission.

I wish to make it clear that I am not in a position to carry out an investigation or make any findings of fact into the allegations of bullying and harassment. However, I am obliged in reaching my conclusions in this matter to take cognisance of the rights of all parties to the natural justice and fair procedures.

While during the three days of the adjudication hearing the Worker raised numerous allegations against the Employer, there was no dispute that during her employment, the Worker formally raised a grievance on one occasion, on 20th September 2019. Her grievance was against one of the Directors of the Employer alleging intrusion by pestering, spying and stalking, intimidation, undermining her right to dignity at work, targeting for “special negative treatment”, and manipulation of the Worker’s job content.

The Employer engaged an independent HR consultant to conduct an investigation. The report resulting from the investigation issued on 24th October 2019 and indicated that the Worker declined to participate in the investigation process. The investigator confirmed in his report that the process entailed examination of all the relevant written communication between the parties including emails, WhatsApp messages, face-to face interviews and telephone interviews.  The investigator’s report did not uphold the Workers’ claims.

The Worker appealed the findings of the report by way of an undated letter (from the chronology of events as presented by the Worker it appears that she appealed the finding on or around 6th December 2019). I note that the Respondent engaged another independent HR consultant to consider the Worker’s appeal. However, as at the time the Worker was at an advanced stage of pregnancy and was due to commence her maternity leave on 16th December 2019, the HR consultant, after making initial introduction, decided to put the matter on hold until the Worker’s return from maternity leave. Unfortunately, due to the closure of the Employer’s business, the matter has never been concluded.

In the circumstances, I am satisfied that the Employer acted appropriately in engaging the service of two independent HR consultants to investigate the Worker’s grievance. I find that due to the Employer’s decision to cease the operation of the business prior to the Worker’s return, it was not possible for the Employer to continue with the appeal process.

Having carefully considered the submissions of both parties, I find that the manner in which the Worker’s grievance and the subsequent appeal (to the point that it was possible to do so due to the Employer’s closure) complied with the standard of fairness that could be expected from a reasonable employer.

I find that the Worker was not denied fair procedures and the principles of natural justice.

I cannot concede to the Worker’s claim that the manner in which the Employer conducted the grievance process was lacking in procedural fairness or was contrary to the principles of natural justice. 

Bullying and harassment procedure