Worker

Employer

Anonymised Parties

Business Manager

Health Service

Representatives

Ms. Eithne O’Reid Doherty BL

Mr. Bob McArdle, Patrick J. Durcan & Co Solicitors

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 - 00002440

02/04/2024

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

IR - SC - 00002441

02/04/2024

On 2nd April 2024, the Worker referred the present disputes to the Commission. Herein, she alleged that an internal investigation conducted by the Employer was fundamentally flawed and should be set aside.  B subsequent response, the Employer submitted that the process adopted in relation to the investigation of the complaints was legally robust, comprehensive and respected all of the Worker’s natural and contractual rights. 

Following the Employer’s failure to object to the hearing of the dispute within the statutory timeframe, the matter proceeded to hearing. Hearings in relation to this matter, and numerous other matters listed under justiciable legislation, were convened for 29/11/24, 28/04/25, 29/04.25 & 01/12/2025. These hearings were held in person at the Commission’s Sligo offices.

Both parties issued voluminous submissions in advance of the hearing. Said submissions were expanded upon verbally and contested by the opposing party in the course of the hearing. While two trade disputes were referred under this file reference, both matters will be considered under the first case reference.

No issues as to my jurisdiction to hear the disputes were raised at any stage of the proceedings.

The Worker stated that she is engaged as a business manager with the Employer. Upon her return from a career break in 2019, she began to encounter significant difficulties in the workplace. Specifically, her direct manager assigned her an inordinate workload, which included a substantial assignment regarding an audit. The Worker received no assistance in the completion of this audit, being expected to her to design her own template and seek assistance nationally. Furthermore, she was obliged to work on a laptop while sharing a small office with another member of staff. The Worker stated that she suffered significant and ongoing difficulties thereafter, including ongoing bullying and harassment, demotion from her duties, financial penalties, and general adverse treatment.

Following unsuccessful attempts to resolve the matter informally in accordance with the Employer's internal procedures, the Worker made a formal complaint of bullying on 11th January 2022. This complaint was sent to numerous parties, including the Worker's direct manager, the then Minister for Health, and the Employer's Head of Human Resources. The Worker stated that the subsequent investigation was fundamentally flawed on both a procedural and substantive basis, arguing that the process should be set aside and a fresh investigation undertaken by an external party with no prior relationship to the Employer.

The Worker stated that there were numerous grounds for this belief, the first of which related to the initial screening of the complaint by the then Head of Human Resources. The Worker stated that an incorrect definition of bullying was used during this screening process. Specifically, the definition utilised omitted the phrase "conducted by one or more persons against another or others." The Worker submitted that this omission led all parties into irredeemable errors regarding the subsequent process, as this phrase represented the definition of corporate bullying against the Employer.

In this regard, the Worker submitted that she had stated her complaints thematically against the corporate entity of the Employer rather than naming individuals as the primary targets. She stated that the Head of Human Resources erroneously reconfigured this single complaint into multiple separate complaints against a range of single individuals. The Worker stated that the 2019 Dignity at Work Policy contained a wider definition, as did Statutory Instrument number 674 of 2000. She further stated that the revised HSE Dignity at Work Policy of April 2022, implemented from 29th April 2022, repeated this wider definition.

In addition, the Worker stated that the minutes of an initial meeting were inaccurate and that the meeting itself should never have taken place, as the relevant Dignity at Work Policy provided that initial screening should be based on the written complaint only. The Head of Human Resources met with the Worker on 22nd February 2022 and produced an inaccurate minute of the meeting, which the Worker was compelled to correct using her own notes.

The Worker submitted that the investigator appointed to the investigation thereafter gave rise to significant obfuscation and confusion regarding the complainants themselves and the process to be adopted in the investigation of the same. Specifically, the investigator never produced the exact allegations put forward to the perpetrators, providing them instead with summaries that were never disclosed to the Worker. Furthermore, one of the individuals named by the Worker was omitted as a respondent to the complaint. The Worker submitted that her single complaint of corporate bullying was improperly configured into five separate complaints against five separate individuals. Regarding the screening process, the written decision stated that, having reviewed the complaint in detail, the threshold for bullying was not met against each of the individual employees. The Worker contested this, stating that she had not made individual complaints of bullying against those employees, but had instead outlined thematic bullying behaviour against the corporation while naming different individuals to illustrate the wrongdoing perpetrated against her.

The Worker stated that the investigation was procedurally and substantively unfair, the allegations were deliberately confused, and the terms of reference concentrated on matters irrelevant to the incident. She stated that substantive matters were deliberately misrepresented, that the investigation was biased, and the process was subject to inordinate delay. The Worker submitted that her allegations were truncated and summarised to obscure what she had actually stated, thereby breaching the basic tenet of fair procedures.

The investigator conducted interviews from late 2022 into 2023 but failed to provide an agenda for any of these interviews. The Worker submitted that the investigator sought to minimize and excuse the behaviour complained of. In this regard, the Worker highlighted a serious omission from the transcript of the interview on 2nd March 2023 regarding an allegation of stalking by a member of the Employer's management. The Worker stated that the investigator spent approximately twenty minutes off the record attempting to persuade her to exclude the incident from the interview record, advising her that she could face legal liability for the allegations. The Worker stated that this behaviour demonstrated bias toward the Employer and constituted inappropriate conduct by the investigator.

The Worker further submitted that the investigator failed to outline the procedures or the timeline he intended to follow, failing to comply with the timeframes set out in the 2009 Dignity at Work Policy or the 2022 version. The Worker stated that she failed to receive transcripts of the interviews from the investigator, was never asked for a list of witnesses, and was not permitted to adduce additional evidence from witnesses. No reasons were provided for the interviews, nor did the communications clarify which allegations were being addressed.

Overall, the Worker stated that the process was subjected to significant delays. She requested that the investigator recuse himself, but this request was refused. The Worker submitted that the investigator was biased and had predetermined the outcome, noting that the investigator produced five separate draft reports exonerating the respondents, and by extension, the Employer. The Worker requested that these draft outcomes be withdrawn, that a single report on corporate bullying be produced, and that the investigator recuse himself due to bias. These requests were duly denied by the Employer.

In addition, the Worker submitted that the commissioning of the investigator was inexorably linked to the adverse treatment alleged, noting that her partner, who also worked for the Employer, was instrumental in withdrawing the Worker’s wages during the process.

The Worker submitted that the process adopted by the Employer was flawed to such a degree that the entire investigation had to be set aside and commenced afresh with a new investigator under renewed terms of reference. She stated that this investigator should be entirely separate from the Employer's organization and should be appointed by the agreement of all parties. The Worker emphasized that the failure of the Employer to deal with her complaints as corporate bullying, rather than as individual complaints against the named employees, fundamentally and irrevocably damaged the process from the outset.

In consideration of the accumulation of the foregoing points, the Worker submitted that a recommendation should issue in her favour in the terms listed above.

By response, the Employer denied the allegations raised by the Worker and stated that the investigation into her complaints was comprehensive, through and respected the Worker’s natural and contractual rights.

In this regard, the Employer stated that the investigation was conducted in accordance with relevant dignity at work policy. The Employer stated that the Worker raised issue with the investigator initially appointed. This investigator was subsequently dismissed, and a new investigator was appointed by agreement of all parties. This investigator then met with the Worker on three separate occasions to allow her an opportunity to present all her evidence. The Employer submitted that the Worker was provided with a copy of the transcript of her interviews and was afforded the right to provide comments through correspondence with the Worker's solicitors.

The Employer submitted stated that in an effort to be as fair as possible, the investigator afforded the Worker three separate interviews and advised her from the outset to obtain independent legal advice, expressly noting that he was pleased when she did so. Regarding the allegations of bias on the part of the investigator or the commissioner of the investigation, the Employer denied the claims. The Employer clarified that the commissioner of the investigation simply performed an administrative function to oversee the organisation of the process and had no input into the findings. This independence between the roles of investigator and the commissioner was outlined to the Worker's solicitor in correspondence dated 1st January 2024.

Regarding the delays, the Employer submitted that the timeline facilitated the three separate interview dates for the Worker. It submitted that the transcript of each interview and the feedback received from the Worker required considerable redaction to protect the privacy of all parties, as there were five separate respondents to the allegations. Various witnesses were identified by the Worker during her interviews. These witnesses were interviewed on 18th July 2023, 5th September 2023, 15th September 2023, and 8th November 2023, prior to the interviews with the respondents. Following these interviews, the Employer provided over 390 pages of documentation, which the investigator had to review and consider in the context of the terms of reference. In addition, throughout the investigation, there were numerous communications with the Worker's solicitors regarding procedural matters and draft reports. Following consideration of this considerable body of documentation, five draft reports were issued on 23rd February 2024. The Employer stated that while it was acknowledged that the investigation took some time to come to this stage, this was unavoidable given the extensive nature of the allegations and the number of interviews required in the investigation of the same.

Regarding the Worker's allegations respecting the screening of the complaint, the Employer accepted that a meeting for the screening process is generally not required. However, in this particular instance, the Employer offered a meeting to allow the provision of relevant information and background to the complaint. The Employer expressly stated that attendance at this meeting was not mandatory or a prerequisite for the screening, and that the Worker was at liberty to decline the offer without any detriment to the management of the complaint. In this regard, the Employer stated that the Worker freely attended the meeting and was only now seeking to raise concerns respecting the same. The Employer submitted that the allegations put to the various respondents, which were those contained in the letter of complaint submitted by the Worker, were fully addressed by her during her three subsequent interviews.

Regarding the issue of summaries, it was accepted that during the meeting on 2nd March 2023, the investigator stated that he wished to get the full nature of matters set on record and to take note of the Worker's testimony in relation to the allegations raised. The Employer further denied that the complaints were truncated or that they were not put to the Employers, asserting that the respondents were made fully aware of the complaints. The Employer referenced the terms of reference, which made clear that the allegation being investigated was the allegation of 11th January 2022, which was duly put to the respondents to be answered.

Regarding the structure of the interviews, the Worker indicated an understanding regarding the structure and purpose at the outset of each interview. At the interview on 1st March 2022, the investigator stated that the purpose of the meeting was to record the Worker's account, noting that he wished to go through each of the allegations in respect of each individual implicated by the complaint. On 18th July 2023, the investigator stated that the purpose of that interview was to separate out all of the different individual respondents so that the stenographer could take an account of each one and provide separate scripts to each individual. He stated that the purpose was to ensure each respondent received only what was pertinent to them and to ensure the collation of evidence was not cross contaminated. In response to this verbal explanation during the meeting, the Worker stated that she understood. The Employer stated that a stenographer was appointed to keep a verbatim account of these meetings.

The Employer submitted that there was no evidence throughout the interviews that the investigator sought to minimize or excuse the behaviour complained of. Throughout each interview, the investigator maintained that the purpose was to allow the Worker to put her account of the allegations on record. In line with fair procedures and natural justice, copies of the transcripts were provided to the Worker for review. The Employer submitted that in sending these transcripts, the investigator was not offering an opportunity to withdraw evidence or alter the slant of what was said. Each of the transcripts was redacted to ensure each Employer only received information relating to them, but the contents were not amended or changed in any other way. The Employer submitted that this represented a significant workload, but the process was undertaken to ensure that procedures were diligently followed.

Regarding the allegations of stalking and the claim that the Employer failed to deal with these matters, the Employer stated that the issue of stalking was briefly dealt with during the interview on 2nd March 2023 and with a proposal that the matter be returned to in the afternoon. The Worker stated during the interview that the allegations of stalking were not expressly made against the individual in question. During the interview on 3rd July 2023, the investigator asked the Worker whether she sought advice in relation to this particular allegation, to which the Worker stated she did. In response, the Worker stated that she asked her representative about the stalking incident, and that they agreed that it should be excluded. In seeking to clarify, the investigator asked if the stalking incident was to be excluded, to which the Worker confirmed that it was.

Regarding the correct policy to be adopted, the Employer stated that the definitions used were taken from the Dignity at Work Policy in force at the time. While it was accepted that the Dignity at Work Policy changed thereafter, the Employer submitted that this was the correct policy to use when the terms of reference were drawn up. The draft reports in relation to the respondents, along with the transcripts, witness interviews, and supporting documentation, were sent to the Worker on 23rd February 2024. The Worker was advised that she could provide comments if she wished and was permitted over a month to review and provide commentary.

Having regard to the foregoing, the Employer submitted that the process adopted in relation to the complaints was fair, and that no recommendation should issue in favour of the Worker.

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

Regarding the present dispute, the parties remain in significant disagreement as to the fairness or otherwise of an investigation undertaken by the Employer. The Worker stated that from the outset this process was irredeemably flawed, that the procedure adopted thereafter did not respect her natural or contractual rights, and that it resulted in a fatally flawed draft report which could not have legal standing. In this regard, the Worker submitted that the draft outcome arising from the same should be set aside and that a new investigation should commence, to be chaired by an independent investigator agreed by all parties.

By way of response, the Employer denied the each of the allegations raised by the Worker and stated that the process was lengthy, comprehensive, and respected all of the Worker's natural and contractual rights. The parties remained in dispute in relation to all matters raised regarding the conduct of the investigation itself.

One of the initial points raised by the Worker, was that prior the initial screening of the complaint, the process was subject to a substantial procedural flaw. In this regard, the Worker submitted that she was invited to a meeting with the then Head of Human Resources for the Employer in advance of the screening process. In this regard, it is apparent that the screening of such complaints does not generally require such a meeting prior to the screening occurring. However, on this occasion, the individual screening the complaints formed the view that a meeting between the parties would be beneficial in order to clarify the complaints.

A review of the relevant documentation indicates that this decision was not unreasonable, given that the complaint raised by the Worker was extremely lengthy, detailed, and implicated several members of the Employer organisation. It is also apparent that the individual screening the complaint invited the Worker to this meeting on a purely voluntary basis and was at pains to set out that the Worker's non-attendance would not in any way prejudice the subsequent screening of the complaint. Thereafter, the Worker attended this meeting on a voluntary basis and engaged in this process wholeheartedly. In this regard, it is not reasonable for the Worker to allege that this meeting constituted a procedural flaw in the process when she raised no contemporaneous issue in respect of the same at the relevant time.

Thereafter, the Worker raised a further issue regarding the screening of the complaint. In this regard, she alleged that the individual screening the complaint adopted an incorrect definition of bullying for the purposes of the terms of reference. The relevant dignity at work policy defined bullying as,

“…. repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.”

However, in the terms of reference, a mis-phrased definition of bullying was utilised, which omitted the phrase “conducted by one or more persons against another or others”. By submission, the Worker suggested that this omission led the Employer into a series of errors thereafter. In particular, the Worker submitted that the phrase in question incorporated the concept of “corporate bullying”. Throughout the hearing, the Worker submitted that the failure of the Employer to investigate the complaint as a complaint of corporate bullying against the organisation, as opposed to a series of complaints against individuals, constituted a significant procedural flaw, which served to fatally undermine the process adopted thereafter.

The definition of corporate bullying for these purposes was set out in the matter of Ruffley -v- The Board of Management of St Patrick's National School [2017] IESC 331. At paragraph 45, O’Donnell J held as follows,

“Most cases of workplace bullying involve bullying by an individual, or a group excluding and victimising a person, and which in either case the employer fails to prevent or remedy. There may also be so called ʻcorporate bullying’ involving a superior, or indeed management more generally in the treatment of the individual. Where more than one person is involved as where the individual is ostracised, or subjected to ridicule, it will usually involve some obvious concerted action.”

The Worker strongly submitted that the exclusion of the phrase in the terms of reference unlawfully narrowed the investigation to discrete complaints against separate individuals as opposed to an orchestrated campaign on the part of the Employer.

In this regard, it is noted that the Worker's letter of complaint, which was the foundation of the terms of reference, did not express or allege any such corporate bullying on the part of the Employer, nor did it appear that the phrase corporate bullying was used during the screening meeting. In this regard, it is perhaps unsurprising that the Employer did not engage in an investigation of corporate bullying when the same was not requested by the Worker at the relevant time.

The concerns regarding this alleged corporate bullying came into focus towards the end of the process, at which point numerous hours and resources had been dedicated to the investigation of the various complaints raised by the Worker. If the Worker had reservations regarding the failure of the Employer to deal with the complaint of corporate bullying, the correct and appropriate time to raise such an issue would have been prior to the screening of the complaint or on receipt of the terms of reference.

In addition to the foregoing, it is not clear what, if any, difference in procedure would arise from the shift of the focus of the investigation from individual complaints to one of corporate bullying. In this regard, the initial step in proving an orchestrated campaign of bullying would be to demonstrate wrongdoing on an individual level, whether perpetrated by managements or colleagues. It stands to reason that there cannot be an orchestrated campaign of bullying, without individual actions of wrongdoing demonstrating this campaign. Having regard to the accumulation of the foregoing points, I find that while the investigator should not have amended the definition of bullying for the purposes of the terms of reference, and that this action caused the Worker some difficulty towards the end of the process, this did not serve to create fundamentally flawed process or outcome thereafter. 

The Worker also stated that an individual implicated by her in her formal complaint was not referenced as a respondent to the complaint. Again, it is noted that the appropriate time to raise this issue would have been upon receipt of the internal terms of reference, as opposed to towards the conclusion of the process. It is further noted that after the screening meeting, the Worker confirmed the individuals against whom the complaint was raised. While the Worker raised numerous issues regarding the minutes of the meeting, no issue was raised with this portion of the meeting, and it can be assumed that the Worker accepted this position at the relevant time.

Another of the primary complaints raised by the Worker, was that the investigator did not forward all relevant documentation to the respondents to the complaint. In this respect, the Worker submitted that her complaint consisted of three tranches of documents, being the initial formal letter of complaint, a further extensive document submitted at the screening, and a final document submitted thereafter. She submitted that the Employer confirmed that only the initial letter of complaint was forwarded to the respondents, with the status of the other two documents remaining unknown.

In this regard, it is apparent that the Worker issued a comprehensive letter of complaint at the outset of the process, and the terms of reference duly agreed between the parties expressly stated that the investigation was to be based on the allegations raised in this document. Thereafter, the investigator held three separate meetings with the Worker. It is noted that the cumulative duration of these meetings was over seven hours and that the same were attended by a stenographer for the purposes of ensuring that accurate minutes were recorded. In the course of these meetings, the investigator requested that the Worker clarify the precise nature of her complaints so that the same could be put to the individual respondents thereafter. The Worker undertook this task, and these allegations were put to the relevant individual as part of the process. It is also apparent that the Employer went through considerable effort to redact these minutes for each individual respondent to protect the identity of the other parties, ensuring that the complaints were put to the correct individual and that they had an opportunity to reply.

Notwithstanding the foregoing, it is apparent that the investigator conducted an “off the record” conversation with the Worker during one of their meetings. The position of the Worker was she was prompted to discard one of her complaints, specifically an allegation of stalking that occurred outside of hours at the Worker's home. The investigator did not attend that hearing to disprove this allegation, and the Worker’s version of events regarding this allegation is accepted.

In this regard, the role of an investigator is to conduct an investigation into the allegations raised by a Worker, to ensure that the respondent has an adequate right of response, and to ensure that a draft report is issued. It is not the function of the investigator to advise the Worker in respect of the complaints themselves, nor is it appropriate that an off the record portion of an interview occurs in this manner. Having regard to the foregoing, I find in favour of the Worker in relation to this portion of the dispute.

The Worker raised an issue that the process was fundamentally flawed and that the commissioner of the process was linked to a person within the organisation who allegedly elected to withhold the Worker's pay. In this regard, it is noted that the commissioner of the investigation does not have any function in relation to the decision-making aspect of the complaint but rather is charged with various administrative functions. Having regard to the foregoing, it is found that the alleged connection between these two persons in no way interfered with the process or demonstrated any bias on behalf of the Employer.

In examining the process adopted by the Employer in broad terms, it is apparent that the Worker raised a formal and serious set of allegations against colleagues within the employer organisation. Thereafter, the Employer conducted a screening of the complaints in accordance with their internal procedures, with the additional step of a screening meeting to clarify the complaints. Terms of reference were agreed between the parties, and three individual meetings were held with the Worker in relation to the subject matter of the complaint. Thereafter, the investigator sought responses from the Employers and allowed any witnesses identified by the parties to engage. It is noted that this process was extremely time and resource consuming for the Employer, and it generated hundreds of pages of documentation to be reviewed in advance of issuing the draft report.

While the Worker raised numerous issues regarding the fairness of the investigation, it is found that the process adopted by the Employer broadly respected the Worker's rights. There are no grounds for the process to be set aside, nor for the Employer to be put to the considerable expense of conducting a fresh hearing in relation to the same.

Notwithstanding the foregoing, it is found that the “off the record” portion of the investigation meeting should not have occurred. Notwithstanding the same, it is found that this issue did not so fundamentally undermine the process so as to render the entire investigation invalid.

Having regard to the accumulation of the foregoing points, while certain portions of the Worker’s submission are accepted, I do not recommend  that the investigation be set aside and recommenced.

Corporate Bullying, Off the Record