Worker

Employer

Anonymised Parties

Clinical Coordinator /

Counsellor Therapist

Health & Social Care Service Body

Representatives

Self-represented

Fiona Cheasty, ER Advisor

Act

Dispute Reference No.

Date of Receipt

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

 CA-00041506-01

11/12/2020

The worker referred a dispute about bullying and harassment procedures to the WRC under section 13 of the Industrial Relations Act, 1969.

The worker commenced employment in April 2013 as Clinical Coordinator / Counsellor Therapist of a new service. 

The worker submitted a dignity at work complaint to the employer in 2017.  The complaint concerned alleged bullying behaviour by colleagues.  The employer investigated the complaint.  The final report was issued in November 2019. 

The worker’s complaint was not upheld.  However, the final report contained nine recommendations.  Eight of the nine recommendations were implemented by the employer.  The remaining recommendation about a mediation process to facilitate the safe reintegration of the worker to the workplace had not been implemented when the dispute was referred to the WRC.

The worker’s dispute concerns the handling of the dignity at work complaint, including being placed on paid special leave following a period of sick leave and the impact of the lack of an effective solution to implementing the final recommendation.

The employer’s position is that it conducted a full and fair investigation of the complaint in line with the terms of reference agreed between all the parties in 2018. 

The complaint made by the worker related to alleged behaviours towards the worker by five employees which culminated in an incident in 2017.  The investigation team did not uphold the complaint as, in line with the definition of bullying in the Dignity at Work policy, there was no evidence of inappropriate repeated behaviour.

Eight of the nine recommendations made by the investigation team were implemented.  The remaining recommendation about establishing a mediation process between the parties to facilitate the safe reintegration of the worker to the workplace was still in process when the dispute was referred to the WRC.  The employer continued to engage with the worker to identify a safe return to work position.  The employer expressed the belief that if a further period of time was afforded it would enable the implementation of the outstanding recommendation.

The worker commenced employment with the employer in April 2013 as a Clinical Coordinator responsible for setting up a new service.  The worker states on the dispute referral form that from the outset there was tension between the existing service and the new service.  The tension was mostly a low-level lack of cooperation such as not being allocated new keys when locks were changed, information not being shared and not being included in regular routines at meetings.  There seemed to be unhappiness with the way the new service had been developed.  Tension arose at team meetings and peer group meetings, and the worker encountered direct antagonism during some meetings.

By early 2016 the situation had worsened, and the worker intended to make a formal complaint at that time about the behaviour at one such meeting.  Due to a family death the worker went on bereavement leave and decided not to pursue the complaint at that time.

The meetings continued to be problematic, and the worker’s manager suspended some meetings for several months.  In March 2017 the worker’s manager announced at a team meeting that he was reinstating supervisory group meetings.  The worker raised concerns about the proposed reintroduction, and an argument blew up.  Being questioned about the concerns raised the worker explained their experience of the meetings was that the meetings were a platform for bullying.  The worker left the meeting because the argument had become more heated.  Following the meeting the worker was given a choice by their manager of either apologising to the other team members or putting in an official complaint.

The worker submitted a Dignity at Work complaint in March 2017.  The complaint was reviewed by HR and deemed to meet the criteria and was accepted as a Dignity at Work complaint.  The worker asked for mediation with the other workers.  Mediation was successfully completed with one worker, but others refused to participate.

The worker’s submission lists events from 2017 and 2018 that it is claimed constitute retaliation for submitting the Dignity at Work complaint.  The list includes exclusion from staff social events, lack of cooperation from administrative staff, changes to responsibilities and threats of disciplinary action.  These issues arose after the Dignity at Work complaint was submitted and as such were not part of the investigation as it concerned the alleged bullying in 2017. 

In June 2018 the worker became ill and was certified as unfit for work.  The worker was on sick leave from June to September 2018.  By email of 07 September 2018 the worker was informed they would be placed on special leave with full pay from 10 September 2018 and the situation would be reviewed by senior management. 

Investigation

The investigation of the complaint submitted in 2017 commenced in January 2019.  The final report was issued in November 2019.  The worker’s complaint was not upheld.  The investigation found that there was no evidence of inappropriate repeated behaviour by the worker’s colleagues.

However, the final report contained nine recommendations.  Eight of the nine recommendations were implemented by the employer.  The remaining recommendation about a mediation process to facilitate the safe reintegration of the worker to the workplace had not been implemented when the dispute was referred to the WRC. At the date of referral of the dispute the worker remained on paid special leave.

The main issues for the worker were lack of progress on implementing the final recommendation to facilitate their safe reintegration to the workplace and being placed on special paid leave rather than returning to work after sick leave.

The worker’s submission also raised the issue of the time taken to investigate the complaint and the failure to engage in mediation.  There were issues with changes in the members of the investigation team, which caused delay and the use of an inexperienced note taker.  The worker further stated that their responses to the draft investigation report were not considered in the final report.

The worker from the beginning sought to have the issues addressed through mediation.  When the investigation of the Dignity at Work complaint was completed, the worker did not appeal the findings but agreed to mediation as the report recommended.  The fact that colleagues declined the invitation to mediation resulted in the recommendations not being fully implemented.  The worker cooperated with the employer in considering various options for return to work and accepted a temporary re-deployment in April 2022.  The worker agreed to participate in developing a new project role from July 2023.  The worker has at all times requested to be treated with respect, allowed to fulfil her role, progress her career and participate in continuing professional development.

Preliminary

The employer raised a preliminary issue about the jurisdiction of the AO to hear complaints referred to in the worker’s submission about constructive dismissal, employment equality and pension as the dispute referred under Section 13 of the Industrial Relations Act, 1969 concerns bullying and harassment procedures.  It is the employer’s position that the adjudicator has no jurisdiction to hear these issues referred as a dispute under the Industrial Relations Act.

The employer also contends that it is well established that a worker seeking a remedy to a dispute under the Industrial Relations Act, 1969 must exhaust their employer’s internal dispute resolution mechanisms.  The employer cited decisions in McCormack v Dunnes Stores UD1421/2008 and Terminal Four solutions v Rahman UD 898/2011 in support of this contention.

In this case the worker did not lodge a grievance about the delay in returning her to the workplace through the Grievance Procedure.  Although the internal dispute resolution procedure has not been exhausted the employer has engaged with the worker in exploring suitable roles.  The employer requested additional time to continue consultation with the worker or for the work to initiate the internal grievance procedure.

Employer Position - Substantive Dispute

The worker is employed as a permanent Counsellor/ Therapist / Clinical Coordinator.  This is an enhanced role with a reduction in clinical contact hours to allow for administration and coordination duties. 

The worker lodged a formal complaint under the Dignity at Work Policy in March 2017.  This complaint was referred to the national investigation unit of the employer.  The formal investigation commenced in January 2019, and the final report was published in November 2019.

The worker was on sick leave from 05 June to 09 September 2018.  Following that period of sick leave the worker was placed on paid special leave pending the outcome of the investigation.  The employer regarded this as a protective measure for the worker and colleagues.

The investigation report found “on the balance of probability that the complaint/allegation by the complainant is not upheld in line with the definition of bullying under the Dignity at Work Policy as there is no evidence of inappropriate repeated behaviour by any of the five respondents”.  The report contained nine recommendations.  Eight recommendations were implemented. The remaining recommendation is as follows: “Mediation process to be established between the complainant and staff members within the service to facilitate the safe reintegration of the complainant to the workplace”.

The employer provides a mediation service that is a confidential and safe environment for conflict   resolution.  However, mediation is a voluntary process for conflict prevention and resolution. 

In November 2019 the worker confirmed to the General Manager a willingness to participate in mediation.  In January 2020 the staff that shared the workspace with the worker turned down participation in mediation. 

The employer has a duty to all workers to provide a safe place of work.  Taking cognizance of the working environment and the refusal of some workers to participate in mediation the employer had to carefully consider its position and determine how it could provide a safe place of work for all parties while balancing the service needs.  It was decided to continue the worker on paid special leave whilst a safe return to work position could be identified.

The employer noted several events, outside of its control, that had significant implications for its operations and contributed to the delay in implementing the last recommendation from the Dignity at Work report.

From November 2020 onwards the General Manager of the relevant service was in contact with the worker by phone, email and online meetings trying to establish a role for the worker to be involved with the Covid response work.  It was hoped the worker might have a role involved with the Covid Psychosocial Response.  However, by mid-2021 there was no positive outcome to this proposal.  Several other roles were explored throughout the remainder of 2021.  In November 2021 discussions took place with the worker about a role from mid-January 2022.

In April 2022 the worker and the employer agreed a temporary redeployment.  The redeployment was for a period of three months but by agreement was extended into 2023.  The worker’s General Manager, a new appointee in February 2023, began discussions with the worker about the development of a new role.  Agreement was reached for the worker would end their redeployment role and commence this new role in July 2023.  The employer stated it looked forward to working in collaboration with the worker on this new project.

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

Preliminary Issues

The employer raised two preliminary issues concerning the adjudicator’s jurisdiction to investigate this dispute. 

The worker’s initial submission referred to constructive dismissal, employment equality and pension discrimination.  The employer’s position is that the adjudicator has no jurisdiction to investigate such issues in a dispute about bullying and harassment procedures.  The worker in a written submission received before the first hearing made it clear that the dispute was about bullying procedures and not any other matter.

Second, the employer contends that it is well established that a worker must exhaust internal dispute resolution procedures before referring a dispute to the WRC.  The employer cited two cases in support of this contention.  The cases cited concerned employment rights under the Unfair Dismissals Acts, specifically constructive dismissal claims.  This case concerns an industrial relations dispute between worker and employer; it is not an employment rights complaint.  While it is desirable that internal dispute resolution procedures be used to the full before referring a dispute to an external body, depending on circumstances, it is not essential in an industrial relations dispute.  In an employment rights complaint however, it is well established that the internal procedures must be exhausted before a complaint may be referred to the WRC.

Section 13(3)(a) of the Industrial Relations Act, 1969 as amended, requires an Adjudication Officer to investigate any trade dispute referred to them and to make a recommendation to the parties to the dispute setting forth their opinion on the merits of the dispute.  I am satisfied that as there are no employment rights issues to be determined here, I have jurisdiction to investigate the dispute and make a recommendation based on my opinion of the merits of the dispute.

Substantive Dispute

The worker is a highly qualified professional who was employed as the Clinical Coordinator of a new service within the employer organisation.  This new service was in addition to an existing service, and it seems that from the outset there were tensions between the two.

The worker’s submission described the difficulties that arose during group and supervisory meetings.  The worker sought the assistance of the then General Manager to resolve these issues.  Regrettably, the tension escalated at a meeting to a level where the worker felt they had to leave the meeting. According to the worker’s submission the General Manager, instead of trying to diffuse the tension, gave the worker a choice of apologising to colleagues or submitting a Dignity at Work complaint. 

The worker opted to submit a Dignity at Work complaint but also requested the employer set up a mediation process to resolve the issue.  The worker and one colleague participated in a mediation process, and the issue was resolved.  Other colleagues did not participate in mediation, so the complaint proceeded to investigation.  The worker’s complaint of bullying was not upheld.  However, the investigation team made nine recommendations, all but one were implemented. 

Worker’s Issues

Time

The process from date of complaint to final report took two years and nine months.  While investigations may be complex and take time the length of time taken here allowed other issues to arise.  During that time the worker felt excluded, isolated and the process had a negative effect on her career.  The employer noted there were external factors that affected the organisation, but these did not arise until after the report was finalised.  I accept the external factors were part of the reason for the delay with implementing the final recommendation, but they were not relevant at the investigation stage of the process.

The worker expressed the wish that no other worker would experience similar issues with an investigation in the future.  I note from the employer that the updated Dignity at Work policy emphasises the importance of early intervention and an informal approach, including a second informal procedure, to try to resolve complaints of bullying or harassment. The policy states that such an approach offers the best possible potential for a good outcome, particularly regarding restoring workplace relationships.

Communications

The worker’s submission included examples of email exchanges with the employer.  In my opinion there was a lack of effective communication from the employer to the worker.  For example, the worker was on medically certified sick leave for approximately four months in 2018, when cleared to return to work the worker was transferred to paid special leave.  The email communication stated the worker had been placed on special leave with full pay but provided no explanation or information about this decision.  The worker when on special leave did not receive pay slips or increments for a period, this situation was rectified at a later date.  This was poor management practice.

In my opinion the lack of effective communications from the employer at significant points in the process was unfair on the worker and contributed to their dissatisfaction with how the process was managed.

Investigation and Report

In addition to the time it took to conduct the investigation there were other difficulties with the management of the investigation process.  The investigation team was changed several times.  I accept that people may change roles, be moved to another area or be promoted but it is good employment practice to assign investigators who will be available to complete an investigation.  There were problems also with note taking and missing or unavailable documents in the course of the investigation.

The worker contends that their responses to the draft report were not taken account of in the final report.  It is normal practice to provide a draft report to the parties, but it is the responsibility of the investigators to decide on the content of their final report. 

I note the updated policy provides that the final investigation report is now sent to the complainant and the party against whom the complaint is made for any comments they may wish to submit, including any issues or concerns they may have about the conduct of the investigation in terms of fair process and adherence to procedure.  Had this happened it is possible this dispute might have been resolved directly between the employer and the worker at an early stage.

Report Recommendations

The last remaining recommendation to be implemented is the safe reintegration of the complainant to the workplace.  It was intended that a mediation process would be established between the worker and staff members.  However, this was not possible as mediation is a voluntary process and other staff declined to participate.  The employer has a duty to all employees to provide a safe place of work. The employer’s submission emphasised its duty to provide a safe place of work whilst balancing service needs.  I am satisfied that the external factors mentioned in the employer’s submission contributed to the difficulty in implementing this final recommendation. 

The employer’s submission set out the effort made by the worker’s recent managers to find ways to return the worker to the workplace.  I note the worker cooperated with management to find a way to return to the workplace.  The worker agreed to a temporary redeployment from April 2022.  By agreement the redeployment was extended to mid-July 2023.  The worker participated in discussions with management about the development and implementation of a new project.  The worker agreed to take up this project role from July 2023. 

Conclusion

Having considered the submissions of the parties in this dispute it is my opinion that the initial workplace tensions were not well managed.  The management actions were quite different to the procedures contained in the updated Dignity at Work Policy now in place. 

The management of the investigation was hampered by changes in personnel and lack of experienced support staff.  The findings in the investigation report were however clear and the recommendations, apart from one, were implemented by the employer.  The remaining recommendation proved difficult to implement due to lack of cooperation from colleagues who refused to participate in mediation and several significant external factors.  There was a lack of informative and effective communication from the employer to the worker that resulted in decisions not being explained, payslips not being available on time and increments delayed.  Resulting from these circumstances but, mainly from the lack of informative and effective communication it is my opinion the worker was treated unfairly.

I note the worker cooperated fully with the employer in the efforts to implement the final recommendation to facilitate the safe reintegration of the worker to the workplace.  I note the issues with the payslips and increments were resolved.  The worker suffered a delay in payment but ultimately no loss of income.  I note the employer’s commitment to resolve administrative issues concerning pension and leave.

In my opinion the worker received unfair treatment due mainly to a lack of informative and effective communication from the employer.  I am satisfied that the employer has implement an updated Dignity at Work Policy that should avoid similar issues arising in the future, due mainly to the focus on early resolution of such issues. 

Considering all the circumstances I make the following recommendations:

• I recommend a payment of €5,000 to the worker because of their unfair treatment which arose mainly from the lack of informative and effective communication.
• I recommend the employer ensures any outstanding administrative issues are addressed.
• I recommend the employer continues to regularly review the implementation of their updated Dignity at Work Policy.

Dignity at Work

Investigation Procedure