Worker

Employer

Anonymised Parties

worker

Medical Science Company

Representatives

self

Kady O'Connell Mason Hayes & Curran

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 - 00000046

06/04/2022

The background to this dispute relates to the investigation of a bullying complaint and how fair that process has been. The worker experienced a high level of stress arising from what he alleges was bullying behaviour from his manager. That resulted in long term absence from work and trauma that caused him very significant mental anguish and health problems.

The worker believes that the investigation could not have arrived at the findings that no bullying occurred based on the interview statements from other employees who also experienced aggressive behaviour from that manager. He wants the company to believe his version.

The Company is bound by the findings of the investigation absent of any adverse finding that it was conducted unfairly. The investigation was fair and impartial and arrived at its conclusions based on fact and the investigation complied substantially with the code.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

The relevant section of the Code SI No 674/2020 is:

4.2.1 Formal Complaint

The complainant should make a formal complaint in writing that should be signed and dated. Where this is not possible, a written record should be taken of the complaint by the assigned person and signed by the complainant and dated.

The complaint should be confined to precise details of alleged incidents of bullying, including their dates, and names of witnesses, where possible.

The complainant and the respondent should be advised of the aims and objectives of the formal process, the procedures and approximate ideal timeframe involved, and the possible outcomes. Both parties should be assured of support as required throughout the process.

An initial meeting should be organised by the employer at which each person is met with separately, starting with the person making the allegation. The other party, when met with, should be given a copy of the complaint in full and both should be given any relevant documents including the company Anti Bullying Policy.

4.2.2 Investigation

The investigation should be governed by terms of reference which should include the following:

• The investigation will be conducted in accordance with the employment’s Anti Bullying Policy which should reflect this Code of Practice.

• An indicative timescale for its completion - this timeframe should be proposed, and its rationale explained.

• The scope of the investigation, sets out the procedure to be adopted for findings of fact related to the complaint and a statement that the investigator will consider, based on the facts before them whether the behaviour(s) complained of, on the balance of probabilities, have occurred.

• Confidentiality of the process should be emphasised to all concerned.

All parties to the process have a responsibility to participate without undue delay in any investigation initiated in response to an allegation of bullying.

The scope of the investigation should indicate that the investigator will decide based on the facts before them whether the behaviour complained of may, on the balance of probabilities have occurred. The investigator should not uphold or dismiss the allegations and/or suggest or impose sanctions.

Statements from all parties, including witnesses should be recorded in writing as the use of written statements tends to make matters clearer from the outset and maintains clarity throughout the investigation. Copies of the record of their statements should be given to those who make statements to the investigator. Copies should also be provided to the complainant and the person complained of and should result in findings of fact only.

If possible, all parties should continue to work normally during the investigation.

The objective of an investigation is to ascertain whether, on the balance of probabilities, the behaviours complained of occurred, it having already been established that the behaviours come within the description of workplace bullying. Details of the complaint, responses of the person complained of, witness statements and other relevant evidence are relied on for this purpose.

The investigation should be conducted by either a designated member(s) of management (as outlined earlier in this Code) or, if necessary, (for example in the case of any possible conflict of interest) an independent third party. In either case, the person nominated should have appropriate training and experience and be familiar with the procedures involved. The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the person complained of.

The investigator should meet with the complainant and the person complained of and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts.

A work colleague or employee/trade union representative (provided the person has representation in line with the principles of natural justice and fair procedure) may accompany the complainant and the person complained of, if so desired.

The investigation will consider all material and evidence before it and a decision will be made on balance of probability, as to whether the complaint is valid. If the investigator concludes that the accused employee has a case to answer on the balance of probability, then the investigator may recommend whether or not the employer should invoke the Disciplinary procedure.

4.2.3 Appeals

Within the workplace formal system, an appeals process for both parties should be in place. The reason for the appeal should be outlined in writing to management if such an option is being taken. The time period for an appeal should be specified in the policy. The appeal should be heard by another party, of at least the same level of seniority as - but preferably more senior than - the original investigator. This party should have had no involvement in the investigation. The appeal should focus on the conduct of the investigation in terms of fair process and adherence to procedure. It should be noted that an appeal is not a re-hearing of the original issues. The outcome of the appeal shall be final insofar as the employer duties under health and safety legislation is required.

Very small and micro organisations will need to consider at the outset of the formal process how they would manage a request for appeal and this may require outside independent support.

The Respondent conducted a comprehensive investigation into the complaint of bullying. That complaint was made in January 2022. The investigation concluded on or about the end of March 2022 and the report was issued to the Complainant on the 1st of April 2022. The investigator concluded that having carefully considered all relevant information gathered as part of the investigation, she did not believe, based on the balance of probabilities, that bullying may have occurred, although she felt it was clear that there were interpersonal issues between the Complainant and the alleged perpetrator. The Complainant was advised of the right of appeal of this finding. The Complainant however decided to refer the matter to the WRC.

The Complainant and the person whom the allegations were about were requested to enter mediation; however, while one party was willing to enter that process the Complainant was not.

In a related matter the Complainant was also subject to disciplinary investigation arising from an allegation of using offensive language towards colleagues on various occasion.

At 4.2.3 of the code, it states that the appeal process should focus on the conduct of the investigation in terms of fair process and adherence to procedure.

At 5.1 of the code, it states:

The Adjudicator will not rehear the substance of the case. A number of outcomes are possible; the Adjudicator may conclude that the investigation was conducted properly and fairly and hence its conclusions should stand. The Adjudicator may, on the other hand conclude that the investigation process was flawed in some respect and could recommend, for example, that the investigation be reheard.

The Complainant had an expectation that the matter before me could be investigated afresh. That is not the purpose of a referral under the Act.

The Complaint maintained that based on the witness statements the investigator could not have arrived at the conclusions she did, as others also experienced oppressive and abusive behaviour and the statements from them corroborated that.

It is important to note that the worker also was subject to a disciplinary investigation where his behaviour was deemed to be inappropriate. From the witness statements matters concerning the behaviour of the manager towards colleagues was identified as at times as abusive.

I note the code at page 13 states:

Apart from once-off behaviours, other on-going behaviours which may upset or unsettle a person may not come within the bullying definition either. Behaviour considered bullying by one person may be considered routine interaction by another, so the ‘reasonableness’ of behaviours over time must be considered. Disrespectful behaviour, whilst not ideal, is not of itself bullying. Conflicts and disagreements do not, of themselves, make for a bullying pattern either. There are various workplace behavioural issues and relationship breakdowns which are troubling, upsetting and unsettling but are not of an adequate level of destructiveness to meet the criteria required for a bullying case.

At 3.1.2 the code states that an Employee also has an obligation to create a co-operative relational climate.:

Each employee should:

• create a co-operative relational climate within the workplace by their own behaviour. How they behave and how that behaviour is responded to feeds into a broader sense of what is acceptable. Employees both individually and within teams and groups, have a role in promoting positive behaviour to others, relating in clear, civil and respectful ways to everybody in the workplace

I have reviewed the investigation report and it substantially complies with the how an investigation should be conducted. The purpose of the investigation is to:

The objective of an investigation is to ascertain whether, on the balance of probabilities, the behaviours complained of occurred, it having already been established that the behaviours come within the description of workplace bullying. Details of the complaint, responses of the person complained of, witness statements and other relevant evidence are relied on for this purpose

Prior to the hearing the worker writes to the Commission about bringing witnesses to the hearing:

Hi I'm (worker) from [company] case number adj-00038120 im looking to bring two witnesses with me to my hearing on the 12th of December 2022 ....both of these have vital evidence (colleague) who has dates and times he was picked on ....and (colleague) and (colleague) who heard first hand including myself (colleague) and (colleague) that (team leader) who was backing up the old manager has now came out and appoligised to all of us and told us ( Manager was out to get us ) if possible I want to bring these two on the 12th of December.

The worker had an expectation that in coming to the WRC that his case would be reheard. However, the code clearly states:

The Adjudicator will not rehear the substance of the case

However, that does not preclude a review of the report to make a finding on whether the conclusions are rational. That does not mean that the Adjudicator should displace the decision maker and decide based on the facts as the Adjudicator would find reasonable. The review of the witness statements and the conclusions drawn based on the facts as understood and in the statements are not unreasonable.

 In Bunyan v United Dominions Trust [1982] ILRM 404 at 413 the Employment Appeals Tribunal stated:

the Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.’

The worker in this case did not appeal the decision of the investigator and a more senior executive wrote to the worker about his right to appeal:

I refer to the investigation conducted by (investigator) into concerns raised by you. (The Investigator) shared your response to the investigation report with me, and we understand you are unhappy with the outcome. Please note that under our Dignity at Work Policy you may submit an appeal in relation to the conduct of the investigation, if you are unhappy with how the investigation was conducted. However, please note that in line with our policy (copy attached) and the WRC Code of Practice on Bullying, this is not an appeal of the substantive findings of the report or of the original issues which are the subject matter of the complaint - it is limited to an appeal of how the investigation was conducted. If you wish to appeal how the investigation was conducted, please let me have your written grounds of appeal as soon as possible and by no later than end of working day Wednesday 13th April. I note you have indicated that you intend to refer your concerns in relation to this matter to the WRC, and that is your prerogative, although we would strongly encourage you to consider the mediation process, should both you and (Manager) be agreeable to this approach, with a view to resolving the issues between you. We really think this could be very beneficial for you both. Is this something you would consider? Kind regards, Anonymised Associate Director, Human Resource

The Manager a protagonist in this grievance has left the organisation. The worker believes that he was not fairly heard, and the witness statements corroborated that he was likely to be subject to abusive behaviour from his manager. The investigation did not find based on the balance of probabilities that there was in fact a case to answer and concluded that while there were clear interpersonal challenges between the worker and the manager there was no evidence to support a disciplinary investigation alleging bullying:

Having carefully considered all relevant information gathered as part of this investigation, I do not believe that, on the balance of probability, based on the information gathered, bullying of (worker) may have occurred. However, I believe there are some interpersonal issues between (worker) and (manager) which may benefit from some form of mediation or facilitated counselling

It is clear to the Adjudicator that the worker did not fully understand the scope of the initial investigation and the requirements set down by the code. He does feel aggrieved that he was subject to disciplinary sanction while his manager was not despite what he believes is strong corroborative evidence that the manager was not just abusive to him but to others. His objective in bringing this appeal was for the Company to believe him that his manger was out to get him.

I find that the Company has met the requirements as set down in the code. There is a deficit where terms of reference have not been detailed or presented to the adjudicator as having been agreed in advance. I recommend that if required to be conducted with other employees; in future investigations that should be addressed where the code recommends that terms of reference are agreed in advance:

The investigator will endeavour to agree the terms of reference of the investigation with both the complainant and the alleged perpetrator in advance and both will be notified of the likely timeframe for completion. If the Company considers it appropriate to do so, the Company reserves the right, at its discretion, to appoint or engage an external third party to conduct the investigation.

However, the allegations made against the manager were clearly set out and the Company Dignity at Work Policy is comprehensive and clear. The content of the investigation was substantially conducted in line with that policy and on the face of the documents was a fair and comprehensive investigation. The investigation was completed in a timely manner.

I have concluded that the investigation was concluded properly.

Prevention of Bullying at Work-New Code.