Worker

Employer

Anonymised Parties

Scanning operative

Record Processing

Representatives

Sylwia Nowakowska Migrant Rights Centre Ireland

Nicola Murphy Peninsula Business Services Ireland

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 - 00002265

23/02/2024

In her complaint form the worker alleges the following:

I believe the company did not carry out the grievance procedures in a fair way as per SI 146/2000.I was denied a right to have witnesses statement's taken into account during the grievance procedures, the company failed to secure evidence I have requested. I believe I was not made aware I can call witnesses to give verbal evidence. I state the company was also in breach of their own Bullying Prevention Policy & Harassment Policy. I also state the Company was in breach of their own Dignity at work Policy.

This case was also brought under an employment rights claim and that complaint has been determined to be not well founded and the factual matrix is the same.

The Complainant seeks the Adjudicator to make a finding that the procedures followed by the company to investigate her complaints were flawed,  not in line with relevant codes and the company’s own procedures.

The procedures have been substantially followed and comply with fair procedures and the relevant codes.

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

The relevant section of the Code SI No 674/2020 relating to a bullying complaint is as follows:

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.

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 matters complained of do not meet the threshold required to a ground a complaint of bullying. The investigation was held and reviewed the allegations being made by the worker against her supervisor. On the prima facie allegations contained in the  submission and provided at the hearing  and having regard to the most recent incident where the employee left the workplace, I have concluded that the matters that offended this worker do not constitute bullying. The right of appeal was also provided.  The process may have had some deficits, such as the detailing of witness statements in writing, that does not negate the finding that the claim of bullying was not upheld. The expectation that the process should mirror an adjudication process set up under statute does not meet the actual standard of fair procedures required in the workplace. The courts have on numerous occasions referenced that the standards and requirements that must be met in a tribunal administrating justice is higher than what is required in the workplace. That does not negate the right to fair procedures; however, it does not necessitate cross examination of witnesses. The facts of this case to do not warrant another investigation as on the facts of the claim a bullying allegation cannot be maintained. Substantially I find that the investigation was conducted fairly.

Bullying Code of Practice