Rights Commissioner Recommendation in Bullying case
(Transcription from original, some editing of background)
This case was appealed but the appeal was disallowed by the Labour Court on Aug 8th 2011)
Party names redacted
This was a claim referred under the Industrial Relations Act 1946.
Claimant; [A], Claimant Representative Pat Brady, Workplace Solutions,
Employer; [X] Represented by Counsel
The Claimant was employed as a Senior Manager by the company and was appealing the findings of an internal disciplinary process in which she had been given a written warning. She sought the cancellation of the warning and compensation for the distress caused and the breach of her constitutional rights.
The claimant A, on the instructions of the Managing Director reduced the working hours of an employee, B as part of a restructuring of the company. The employee, who was pregnant reacted badly to this and queried whether the decision was a result of her pregnancy and was assured that it was not.
Following a complaint by her (B) to management the decision was reversed but there was no evidence of a formal complaint against the claimant. The original charge was of ‘bullying and harassment’ but it is well established that a single act cannot constitute bullying.
On August 30th the claimant was advised that a complaint had been made and she was suspended but was not told who had made the complaint. On Sept 2nd she was given a copy of B’s statement but this did not contain a complaint and she was never given a complaint.
In its investigation the company interviewed witnesses on A’s general conduct rather than on the incident which gave rise to B’s complaint.
While the MD denied that he had asked A to reduce B’s hours he nonetheless asked her how she had got on when she and B met. The investigation failed to address the conflict in evidence between the MD and A, and was selective in its conclusions and B did not make any complaint.
The employer ignored its obligations under fair procedure requirements; denying A details of the charge, and only giving copy of the findings of the investigation when this was insisted upon by A’s representative (in respect of whom an attempt was made to deny access to the hearing).
The basic facts were not contested. It was said that the first disciplinary meeting was adjourned because A’s representative was neither a colleague nor a trade union representative. She was afforded all fair procedures in line with SI 146/2000 and given copies of all company procedures and the sanction was reasonable in all the circumstances
Findings (verbatim from Rec, save for names)
I find that the employer has acted with undue haste to address the complaint of [B]. They immediately placed [A] on paid administrative leave before it was decided whether she had a case to answer.
I find that [A] was not given the details of the complaint or the name of the person who was making the complaint at the time of the suspension dated August 30th.
I find that suspending someone with pay while it does not convey any guilt however to do so to a senior person in a company may very well have the effect of undermining their position and authority.
The employer’s concern to address [B’s] concerns is commendable but [A] has rights also
I find that there was a conflict of evidence over whether [A] was instructed to reduce [B’s] hours. This matter was not addressed in the investigation.
[A] did give evidence that in a previous case of re-organisation such as the canteen it was discussed with HR first before action was taken. In this case she didn’t and was not able to give any explanation why.
I note that when she advised the MD of the meeting with [B] his immediate reaction was how did she get on and that she had not followed protocol. If [A] had acted unilaterally then the most natural reaction from the MD would been such as ‘you had no authority to do that’ and perhaps to take appropriate action against her for going alone on it, but he didn’t. I note that the investigation did not address this matter either.
I note that [B] at a later stage submitted three complaints 1) Being put on reduced hours 2) perception of misconduct 3) Ongoing work related issues
I note that the investigation took on a broader scope than the original harassment charge that led to [A] being put on paid administrative leave.
I note that the employer formed the view that [A’s] actions had Equality implications as well as Health and Safety.
I find the third element of [B’s] complaint referred to an on-going work issue, no evidence was presented that she had ever raised this in the past. Therefore it must be disregarded. The second element referred to a perception of mistreatment. This I find to be a rather vague statement that needed to be substantiated firstly, but it was not.
I find that the first element of the claim referred to harassment. This complaint referred to one incident arising from the reduction of hours. I find that placing an employee on reduced hours can be very traumatic.
I find that [A’s] evidence concerning the reference to pregnancy being an informal comment that was meant to be soft and understanding to be believable.
I find that the investigation failed to address the substantive matter in dispute and chose to widen the scope to take in broader matters on a more subjective basis.
I did not find hat this one incident could be construed as harassment. I did not find that this one incident in itself could amount to an equality-based claim.
I find that the employer acted hastily and only showed concern for one party to this dispute, [B].
I find that the decision to place [A] on paid administrative leave was taken before there were any facts established and whether she had a case to answer. I find that this action has surely undermined her standing in the company. I find this decision to be unfair.
I find the warning issued was totally unjustified on the evidence presented
I find that the bonus issue was not part of the original claim referred to the Commission and should not fe addressed in this recommendation.
I recommend that the warning should be removed and expunged from [A’s] record.
I recommend that [A] should be paid €5,000 in compensation for the distress caused. This should be paid within six weeks of the date below.