Worker

Employer

Anonymised Parties

A Worker

A State Body

Representatives

John Cleary SIPTU

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 - 00002646

20/05/2024

The Worker has been in employment for over thirty years with the Respondent.

The Worker made a complaint of bullying under the Dignity at Work policy in 2022 in relation to the behaviour of another individual. The complaint was investigated by an external third party.

The Investigation was not conducted in accordance with its Terms of reference nor in accordance with natural justice. In particular, the Worker complains the Investigator failed to interview a key witness (a former Senior employee) who attended a meeting which is central to the complaint, and other relevant witnesses. The Investigator refused to call one witness based on a misunderstanding of the law, failed to ask relevant questions of another witness, and call another witness to give specific evidence. The Investigator allowed one party’s support person to provide witness evidence in breach of fair procedures. The alleged perpetrator claimed he did not recall threatening the Worker but did not deny it. There are many flaws and inaccuracies in the findings. Where objective evidence was submitted countering submissions by the Worker this was not taken into account by the Investigator. The Investigator drew unfair findings on alleged underperformance which had never been raised previously. The Investigator did not take into account the stated inconsistencies from the alleged perpetrator, lacked attention to detail and failed to provide a balanced report. The Investigator failed to provide findings referable to the complaints made, and findings were made outside the remit of the Investigation.

The Worker seeks a suitably qualified and experienced Investigator be appointed to investigate his complaint properly without delay.

The Employer says the Investigation was carried out by an agreed external third party with an agreed Terms of Reference. The Employer says the Investigation was carried out fairly and properly, in line with fair procedure and the principals of natural justice. This was reviewed on Appeal by a former Director who advised the points in the appeal do not render the investigation flawed and that the investigation should stand.

The Employer says the Investigator interviewed witnesses he deemed appropriate, and asked questions he deemed appropriate. He determined his procedures and considered all relevant evidence. It is for the investigator to determine what information of comment constitutes evidence. The Investigator attempted on five occasions to reconvene a meeting with a witness for the Worker. It is for the Investigator to determine what evidence is relevant and to determine the outcome on the balance of probabilities.

It is the role of the Investigator to consider witness credibility in deciding on the weight to be applied to any evidence and this was properly assessed. The Investigator properly considered the evidence in his report making findings on the balance of probabilities. The report does not describe the Worker as an underperformer. The report confirms the Investigator considered all the documentary evidence provided and were considered to determine findings and conclusions. The Investigator noted in his draft report that a further complaint was introduced after the Workers original submission. All additional complaints were given a finding.

The Worker alleges the Investigator made findings outside the remit of the Investigation and based on personal opinion without supporting evidence. The Worker does not specify what conclusions he is referencing. The Employer disagrees with the Workers submissions and says the Investigator considered all evidence. Each finding and conclusion is supported by clear reasoning and in accordance with fair procedures.

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

The Worker made a complaint of bullying against an individual under the Dignity at Work procedure of the Employer. An independent external Investigator was agreed by the parties, and an investigation was carried out into the complaint.

My role is to consider the fairness of the Investigation in accordance with S.I. No. 674/2020 - Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020.

The complaint was first made on 25th July 2022. The complaint relates to a meeting which took place in 2017, and subsequent incidents including one meeting and email correspondence from October 2021 until January 2022.

A detailed terms of reference was drafted, the parties and a number of witnesses were interviewed with all statements circulated, and documentation regarding the incidents reviewed by the Investigator. A detailed investigation report was furnished to the Worker.

The Worker is unhappy with the outcome and has outlined certain complaints about the conduct and outcome of the investigation. His appeal of the investigation was unsuccessful. I have considered carefully the Worker’s complaints, and the submissions of the parties.

At a meeting on 16th May in 2017, the Worker claims that he was offered the role of Deputy Manager combining two Departments by a Senior Manager which he accepted. The individual was present at that meeting and did not object. However, at a subsequent meeting, the Worker said he was intimidated and threatened by the individual who said the changes were being forced on him, and the Senior Manager was due to leave soon. Subsequently, some ten months later the Worker was provided with a letter referring to him deputising for the individual.

I have reviewed the detailed report. It occurs to me that it would be of assistance to the parties, if the Senior Manager is interviewed by the Investigator in relation what occurred at the meeting on 16th May 2017 attended by the Senior Manager, Worker and the individual, and I recommend this action is taken at the earliest opportunity. The Senior Manager is no longer working with the company. However, all employees are required to participate in investigations, and he should be invited to interview and a statement prepared. The parties should then be allowed to provide any further comments on the statement of the Senior Manager which will be supplemental to the Investigation Report. I recommend the Investigator should then provide a revised Investigation report or affirm his Investigation report and circulate this to the parties.