Worker

Employer

Anonymised Parties

A worker

An employer

Representatives

Edward Hyland

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 - 00002098

08/01/2024

The worker was employed as a manager by the respondent. Employment commenced on 3rd April 2009.

This complaint was received by the Workplace Relations Commission on 8th January 2024.

In complaints submitted under the Industrial Relations Act 1969 the complainant is referred to as the Worker and the respondent is referred to as the Employer.

As per the Workplace Relations Commission complaint form the worker has initially stated the following:

I wish to make a complaint against the HR Manager (person’s name and company  name redacted) located in Dublin. After I took up the role of Leisure Club manager in October 2022 for reasons unknown and not detailed to me, on or about November 2022, the Human Resource (HR) manager called members of my staff to her office. She advised three members of my staff (names redacted) to "watch your back" as I had "loads of dirt on them, don' trust her".

The staff were shocked and surprised at what the HR Manager allegedly said to them.  One of the staff  told me of his conversation with the HR Manager in 2022, and at a later date in 2023. Another staff member, one of the three, came to me as he didn't think it was fair what she (the HR Manager)  had said, and informed me of the meeting and later confirmed this action in written form to me.

On another occasion, on 15th June 2023, the HR Manager and the General Manager of the hotel, had a meeting with my supervisor (of the leisure club).This was the first day of my annual leave. At this meeting (not in the presence of the GM) the HR Manager asked if it was true, that we (myself and him) were not getting on well with each other as someone had told her such. He informed me of the approach by the HR Manager, and I sought an explanation from her, asking her what this was about and who gave her this information and why she had not spoken to me about it, she would not tell me. I also asked the General Manager, but he was not forthcoming, he just said "she gave you enough hints". On another occasion on or about June 2023 the HR Manager discussed my role as Manager of the Leisure club with an ex-employee who was the previous leisure club manager, this ex-manager had moved on and took up the role of manager in another Leisure Club. One of the personal trainers subsequently went to work for the ex-manager.  This personal trainer while socializing with other members of staff another member of my staff, told the said staff members that the HR Manager told the former manager that my Supervisor in the leisure club wanted my job and that he had "shafted " the present manager (the complainant).I have a written statement of this from two members of staff. My concern here is that the HR Manager discussed me and my position with someone outside the organization. There were other occasions where she singled me out on staff issues, i.e. she told me if staff were out sick for one day they would need a doctor’s cert to come back and may not be able to return to work for three days due to the nature of the business of the hotel - food and beverage. I asked her was this the same procedure for all departments and if so could she send this instruction by email to all Heads of department. No such email was received. On another occasion she told me not to contact staff by What’s app. Again, I asked for this instruction to be sent to all Heads of Departments, no email was received.

Another time, 3rd February 2023, the HR Manager called me to a meeting and told me a staff member,(who left his employment in the leisure club, due to a disagreement with me after I told him he couldn't sell his own private training session to the club members, that he had to adhere to the club and company rules. He was not happy with this and resigned). The HR Manager told me that he was considering’ suing' me. I was surprised by this and that she had not first asked me the circumstances. I pointed out that I would think he would have to sue the company and not me personally. I felt this was done to try and frighten me. I made a written complaint on 26/07/2007 to the General Manager, which I later confirmed as an official complaint. I informed him that I wished to have my complaint against the HR manager of the Hotel and Leisure Club investigated under official Bullying and Harassment procedure as per company Handbook. I provided witness names and statements to the investigator. I had a meeting with the investigator on 31st July 2023. The hotel duty manager was present at this meeting. After the meeting I asked that the Duty Manager recuse herself from the process due to her close personal relationship with the  HR Manager. My request was denied by the  General Manager who  investigated my complaint, and his finding was that there was no substance to my claim. I did not receive any minutes from the meeting he had with witnesses to my complaint. I asked for an independent review into my case, this was refused. On 3/10/2023 I passed the General Manager  in a corridor of the hotel and he said, "he would speak to me now about my case'. I said sorry but I need to be given notice of this meeting. He said, ' well when'. On reflection I decided to go ahead with the meeting that day rather than delay the process further. I took the assistant HR with me as witness and to take minutes. I informed the General Manager of this, and he said there was no need for minutes as there was nothing to discuss.

At this meeting on 3/10/2023 I was handed a letter and informed by the General Manager that the complaint was investigated and had no substance. I told him he did not interview all my witnesses. He told me there was no need to as the witnesses he had not spoken to knew nothing.

I have a written statement from this missing witness stating that she heard a former staff member say that my supervisor was after my job. At this meeting on 3/10/2023, the General Manager said in the presence of the HR assistant manager, that in fact I was a "bully'. I was astounded by his comment. This comment was not included in the minutes of this meeting. I contacted the HR assistant and pointed this out, but I  did not receive a reply.

In addition, I wish to state that during his, the General Manager’s investigation into my complaint, that neither myself and one of my named witnesses were not interviewed.

To date I have not been given a reason why the HR manager made her comments to my staff or the reason she had for asking my supervisor, about our working relationship. I have worked for the company for 14 years, I have an exemplary record, and I cannot understand why the HR Manager said these things about me and hence I am looking for an explanation. I have exhausted the internal procedure and now I feel I have no option but to seek help from the WRC as this is causing me stress in my job to the point where I find it difficult to go into work. I have attended my doctor, who advised me to take time off work and prescribed medication to help my anxiety.

The worker submitted a written submission to the Workplace Relations Commission dated 2nd July 2024.In this submission it is the Worker’s objective to make the following submissions to the Workplace Relations Commission:

1.       The worker met with the investigator on 30th April 2024. At this meeting the investigator did not investigate the following:

a)       The HR Manager requesting the worker to adopt different organisational policy regarding sickness in her department which was not asked of other departments in the organisation.

b)      The HR Manager informing the worker that she could not communicate to her departmental colleagues by ‘What’s App’

The reason outlined by the independent investigator for not addressing the above complaints at the meeting on 30th April  was that “they were not included in the original WRC complaint” which he was bound to follow.  The complainant believes she outlined these points at the first investigation with the General Manager.

2.       The approach to the Worker’s assistant manager asking if he was getting on with the worker was not properly investigated.

The first time this matter was raised with the HR manager and the General Manager who said there was a meeting arranged (not true), she replied that “she would meet the worker after she returned from annual leave”, she did not, H R Manager said “she met with worker and asked the same question regarding tensions between the two, the Worker had already been told about the meeting” again untrue.

 A different version of this matter was given to the independent investigator who was informed by her that when she met with the assistant manager,he denied there was any substance, and the matter ended there.

The complainant would request the WRC to hear her version of this matter for the following reasons.

Evidence, including an email, was sent to the HR manager about the matter at the time, were;

 A, ignored by her, the HR manager,

B, answered by her to the first investigator by saying “she would meet me, met with me, asked the same questions” completely untrue, and

C, the matter was answered by her during the second investigation by the independent investigator saying that a meeting took place with the assistant manager (not prearranged as she asserted), she did enquire based on hearsay informationshe had received, it was denied by the assistant manager and the matter ended there.

The worker is asking the WRC to hear her evidence in this matter and if required she is willing to call her assistant manager to the WRC meeting on 2nd July 2024 to give his evidence.

The HR Manager  has given different versions of this matter to the first and second investigators, which the worker  believes will show that no such comment was made by a third party, that no person was identified in the matter, despite the first investigator telling her that he  had given her  “enough hints” about the person’s identity (which was completely untrue).

The HR Manager has referred to herself as a “professional HR manager” yet she decided not to speak to me, the person most affected by the allegation, I requested a meeting on the matter to explain her actions. No such meeting occurred and no contact was made by her with me on this matter.

Witness Statements.

The worker believes that she has included in her complaint a number of witnesses who made written signed statements which she gave to the first investigator and the second investigator.

The first investigator chose not to interview one of the worker’s witnesses stating that he had spoken to another witness and that he was informed of the following:

A.      The HR Manager did not make the comments which another person gave in his statement.

B.       The matter was not discussed while out socializing.

The second investigator chose not to interview all  witnesses stating that he believed all were telling the truth but he could never prove that the HR Manager made the comments alleged by another witness  in his statement because yet another witness said in his interview they were not made and secondly, the discussion in the house while socializing were just “hearsay”.

The worker now asks to be heard in evidence under oath by the WRC on this matter for the following reasons;

A.      I believe all witnesses in a complaint should be interviewed, to ascertain the credibility of the individual witness, their openness, honesty, integrity, demeanor and willingness to give evidence in a complaint.

B.       At the meeting between the GM and the HR Manager on 21st September 2023 when the HR Manager gave untrue evidence of meeting with the worker she also referred to remarks by another former employee which raised concerns about the conduct of the worker  and her approach to issues. This was another attempt by the HR Manager to smear the  good name and character of the worker. The former employee was acting in contravention of policy during his employment. I dealt with this matter professionally and while the employee left his employment the matter was never discussed by Management

 Missing/withheld information.

The worker requests that the WRC considers matters which she believes are missing from both investigations which would be relevant to the WRC in coming to a decision on my complaint.

A.      The HR Manager has not produced any minutes of meetings with the worker.

B.       The HR Manager has not produced any replies to emails requesting information on various matters.

C.       The HR Manager has not explained why she chose to deal with the serious matters of rules covering gross misconduct which merits dismissal, in such a way by merely calling in the persons alleged to have committed the breaches and advising them to desist. Was she acting alone in this matter? Did she inform her supervisors and get their approval to deal with the disciplinary breach in such a blasé manner?

D.      Why the worker was not invited to any manager’s meetings (if any took place) from the time of her appointment as manager of the Leisure Club to the time of her complaint to the WRC.

E.       Why was she excluded from social events arranged by management during her time as Leisure Club manager, in particular over the Christmas period?

F.       Minutes of any meetings held by the second investigator.

Summary.

The worker claims she has been bullied by her employer. The HR Manager was responsible for smearing her  good name by telling lies to my staff, treating her department differently to other departments by putting obstacles in her way to cause difficulty managing her department.  Witnesses came forward openly and honestly to the worker and made written and signed statements about her behavior. The HR Manager has given different versions to different people about her actions which she disputes and can show as untruthful by way of emails sent by the worker to her.

Outline facts.

·       The complainant has been employed by the respondent since 2009 and a copy of her most recent contract (29th of August 2013) is available. The Employee Handbook was available and contains the following:

a. Grievance Procedure.

b. Personal Harassment Policy & Procedures.

c. Bullying Prevention & Resolution Policy.

The Bullying Prevention and Resolution procedures also provides for an Appeal that may be lodged by an aggrieved complainant.

·       The complainant lodged a grievance with the respondent on the 26th of July 2023 and formalised it to a complaint on the 21st of August 2023. Please note:

a. 26/07/23 Original Grievance lodged.

b. 21/08/23 Complaint lodged by the complainant.

c. 31/07/23 21/09/23 – Witnesses interviewed and investigation proceeded.

d. 03/10/23 Outcome of investigation informed to the complainant. Her complaint of bullying and harassment was not upheld.

·       The investigation was hampered by a number of factors:

a.       The complainant initially declined to give full details of her grievance/ complaint.

b.       b. Several of the witnesses named by the complainant had no factual evidence to give but merely hearsay/ 3rd party evidence of no evidential value.

c.       Apparent rumour and supposition in the absence of actual facts.

d.        It transpired during the investigation that at least one of the emails relied on by the complainant was sent by another person and not consented to by the email address ‘owner’.

·       The original grievance and subsequent complaint that was lodged by the complainant was investigated in full and adhered to the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

·       Further material to these proceedings is that the complainant did not and has not to date filed an appeal to the respondent regarding the outcome of the investigation.

·       Notwithstanding the fact of a detailed and thorough investigation by an experienced and competent investigator, the complainant is not satisfied with the outcome.

 Preliminary Issue outlined.

·       The Respondent raises a preliminary issue in that, and contrary to her assertion in her WRC complaint, the complainant has brought her claim without exhausting the specific internal procedures available to her, i.e. she has not elected to appeal the outcome of the investigation.

·       The respondent respectfully submits that there is a need to address and decide upon the preliminary issues raised prior to hearing the substantive matters.

·       As of the date of this submission the complainant has filed no written submissions such as would address the defects and deficiencies as above outlined.

Preliminary issue: Failure to exhaust internal procedures.

·       The complainant has an obligation to exhaust or otherwise invoke the internal procedures available to her. She has not appealed the outcome of the investigation of the respondent in the situation where an ‘appeal’ process was specifically provided for her.

·       The Respondent refers to the case of Pungor v MBCC Foods Ltd. (UD584/25) where the EAT determined as follows: “The [employee]… was afforded the right of appeal, which she did not avail of. The [employee] has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

·       Similarly, albeit in an unfair dismissal case, the Labour Court concluded in Aryzta Bakeries -v- Cacs (UDD1812) as follows:

“The Court also finds that there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so. For the reasons stated above and taking account of the failure of the Claimant to exercise his right of internal appeal, the Court finds that the Claimant was not unfairly dismissed.”

·       In the case of An Employee v An Employer (ADJ – 00000381; 12/04/2017) the Adjudication Officer commented as follows:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a … the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction’.”

·       Finally, the Respondent refers to the case of Geoghegan t/a Taps v A Worker INT 1014 in which the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

·       The complainant had requested an ‘independent review’ which was not acceded to. The respondent submits that there are significant distinctions as and between an ‘appeal’ and an ‘independent review’ summarised as follows:

a. An appeal is “the transference of a case from an inferior to a higher tribunal [decision maker] in the hope of reversing or modifying the decisions of the former”: Edlesten -v-LCC (1918)1 KB81. Appeals tend to be de novo rehearing of the substantive matters.

b. A review is discretionary whereas an appeal is a procedural right (as enshrined in the Employee handbook).

c. An appeal is a request to change or modify a decision or verdict whereas review is a request to look into the legality of the determination.

 d. An ‘appeal’ arises when a party to a decision is not satisfied with the verdict/ outcome and decides to appeal against the decision. An appeal is, therefore, a plea for a second judgment on the same matter by the aggrieved party.

e. Review is routinely used in situations where there is no provision for an appeal.

·       At all material times the complainant is quite specific regarding her use of terminology and reliance on the respondents’ procedures, e.g. note her express references to the ‘Handbook’ and to ‘procedures’ on 26/07/23, 27/07/23 and 21/08/23.

·       She did not, or in the alternative, has not exercised her procedural right of ‘appeal’ in this case. Her complaint is premature, and she has not exhausted the internal remedies available to her.

Deciding the preliminary issues prior to hearing the substantive matters.

·       The respondent respectfully submits that there is a need to address and decide upon the preliminary issue raised prior to hearing the substantive matter.

·       In the case of Bus Eireann v SIPTU PTD8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required”.

·       In the case of Donal Gillespie and Donegal Meat Processors UD/20/135 the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be dealt with together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions. Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

·       In summary therefore, the respondent respectfully requests the court to consider and determine the jurisdictional and threshold aspects of the preliminary issue raised.

Conclusion.

·       The respondent original grievance and subsequent complaint that was lodged by the complainant was investigated in full and adhered to the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

·       Further material to these proceedings is that the complainant did not and has not to date filed an appeal to the respondent regarding the outcome of the investigation.

·       Notwithstanding the fact of a detailed and thorough investigation the complainant is not satisfied with the outcome. While this is understandable it is not a ground for upholding her complaint. The respondent respectfully submits that the complaint is not well founded.

·       The respondent reserves the right to adduce further evidence at the hearing of the matter, should that be deemed necessary. Moreover, they reserve the right to submit further written submissions in their defence following the receipt of any further submissions from the complainant.

SUPLEMENTARY SUBMISSION ON BEHALF OF THE RESPONDENT

The hearing of the 12th of April was adjourned to facilitate the conduct of an appeal by the complainant who had not exhausted the internal grievance procedures available to her. That appeal has been conducted, and the complainant has been furnished a copy of the appeal report.

The complainant lodged a grievance with the respondent on the 26th of July 2023 and formalised it to a complaint on the 21st of August 2023. Please note:

a. 26/07/23 Original Grievance raised.

b. 21/08/23 Complaint lodged by the complainant.

c. 31/07/23 21/09/23 – Witnesses interviewed and investigation proceeded.

d. 03/10/23 Outcome of investigation informed to the complainant. Her complaint of bullying and harassment was not upheld.

e. 08/01/24 Complainant files complaint with the WRC.

f. 12/04/24 WRC hearing adjourned to facilitate Appeal.

g. 30/04/24 Investigator meets with the complainant. The investigator has advised the following information (emphasis added in bold font): “… To clarify, the brief from the client was to independently investigate the complaints as set out in the grounding email / letter of the formal complaint made under the Bullying and Harassment procedures contained within the staff handbook, by the claimant to the General Manager of the Hotel on the 21/08/2023. This was explained to the claimant at the meeting of the 30th of April 2024, the claimant confirmed that she understood and consented on that basis for the investigation to proceed. I wish to confirm that it was these allegations only contained in that email / letter of the 21/08/2024 that were investigated and settled in my investigation report. …”

h. 03/06/24 Appeal concluded. Copy furnished to the WRC on the 24/06/24.

i.  06/06/24 Copy of Report furnished to the complainant by the investigator.

j. 21/06/24 Complainant confirms to the respondent that she has received the report.

k. 24/06/24 Complainant files detailed submission to the WRC.

(1) Unfortunately, the complainant seems quite misinformed regarding the conduct of the appeal.

(2) She is attempting to resile from her agreed position of the 20/04/24 (see above).

(3) She is also attempting to introduce new matters that were not the subject of her appeal. (4) She has also raised issues about the conduct of the appeal. The investigator has replied as follows: “… All of the witnesses cited have left the employment, are not covered by company process or procedure and cannot be compelled to give evidence or that evidence to be relied upon. That said this investigator accepted in the case of the alleged conversation between (names redacted) sometime around the 22nd or 23rd of June in the home of one of the witnesses, that on the balance of probability this conversation did take place and on the balance of probability the substance of the conversation was accurate, but no evidence that the respondent HR Manager, made this originating statement could be found. In the alleged conversation between (names redacted) and the respondent HR Manager, in which two of the witnesses denied the conversation took place as set out by the complainant, this investigator on the balance of probability concluded that this allegation could not be upheld for lack of evidence. …”

 l. 27/06/24 Complainant files further submission.

m. 01/07/24 Respondent files reply.

n. 02/07/24 WRC rescheduled hearing.

·       The original grievance, subsequent complaint and subsequent appeal as raised/ lodged by the complainant were investigated in full and adhered to the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

·       Notwithstanding the fact of a detailed and thorough investigation, and a subsequent appeal by an experienced and competent investigator, the complainant is not satisfied with the outcome.

·       The respondent respectfully relies on the case of Euro Car Parts Ireland Limited v A Worker (LCR22092), The Court decided that "The Court finds that the Worker's complaint was investigated in a fair manner and on that basis the appeal must fail".

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

On 8th January 2024 the worker submitted a complaint to the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969.

Following the Supreme Court judgment in Zalewski v Adjudication Officer and WRC  [2021] IESC 24  hearings in the Workplace Relations Commission were now deemed to be the administration of justice and this changed the way most hearings in the WRC were conducted. The only exception to this rule being complaints heard under section 13 of the Industrial Relations Act 1969.

Following the hearing of a complaint heard under section 13 of the Industrial Relations Act 1969 a Recommendation and not a Decision is issued by the Adjudication Officer, such a Recommendation is not legally binding.

In the instant case I have considered the submissions, both verbal and written and would now make the following comments.

I do not believe that the HR Manager has acted professionally at all times. The HR manager should not have approached members of the worker’s department without having first spoken to the worker. It was somewhat surprising that she did not attend the hearing of the complaint.

It is important to state what exactly was investigated.  The employer states the following:

30/04/24 Investigator meets with the complainant. The investigator has advised the following information (emphasis added in bold font): “… To clarify, the brief from the client was to independently investigate the complaints as set out in the grounding email / letter of the formal complaint made under the Bullying and Harassment procedures contained within the staff handbook, by the claimant to the General Manager of the Hotel on the 21/08/2023. This was explained to the claimant at the meeting of the 30th of April 2024, the claimant confirmed that she understood and consented on that basis for the investigation to proceed. I wish to confirm that it was these allegations only contained in that email / letter of the 21/08/2024 that were investigated and settled in my investigation report. …”

I can only agree that it is not possible to change the complaint post investigation.

I form the opinion that neither party has acted very professionally throughout this entire matter and would now recommend that the employer pay compensation of €2,500 to the worker. Such sum should be paid within 42 days from the date of this recommendation.