Case Number: ADJ-00000075. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000075
Date21 December 2016
PartiesAn Administrator v A Telecommunications Company

ADJUDICATION OFFICER RECOMMENDATION/DECISION

Adjudication Recommendation/Decision Reference: ADJ-00000075

Dispute/Complaint for Resolution:

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00000122-001

07/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994

CA-00000122-002

07/10/2015

Date of Adjudication Hearing: 04/11/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 and Section 41(4) of the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into the aforesaid dispute and complaint received by the Workplace Relations Commission (hereinafter ‘WRC’) on 7th October 2015 and gave the Parties an opportunity to be heard and to present any relevant evidence. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. This matter had to be adjourned on a number of prior dates for various reasons but proceeded to a full hearing on 4th November 2016. Both Parties were represented. All oral evidence, written submissions and supporting documentation presented by both Parties have been taken into consideration when coming to this recommendation/decision.

Complainant’s Submission and Presentation:

The Complainant seeks resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to his suspension from work pending an investigation and in particular, the lifting of same. At the outset, his Union Representative confirmed that his complaint under Section 7 of the Terms of Employment (Information) Act 1994 was being withdrawn as the Respondent has now complied with its request to furnish him with details of the terms and conditions of his employment.

The Complainant’s Trade Union Representative outlined the background to this dispute. The Complainant had been employed by the Respondent for over thirty years. In the lead-up to the incidents giving rise to his suspension from employment on 14th May 2015, he had informally raised concerns about bullying in the workplace with senior management in his area which were not being addressed. It was submitted that unbeknownst to him, local management had been in contact with the then acting Director of Employee Relations, Mr AB who gave them advice on how to monitor and manage him. Mr AB had also cancelled a meeting with the Complainant to discuss these matters and he was notified of a ‘duty of care’ referral by HR to the CMO (Company Medical Officer). When he sought an explanation for this referral, on 11th May 2015, Mr AB gave him a clear warning to attend the appointment or face disciplinary action up to possible dismissal. He contacted the CEO to complain about this threat. On 12th May 2015, he also went to deliver a letter personally to Mr AB, outlining that his behaviour was unacceptable and being the appropriate step under the Company Policy for dealing with bullying and harassment. He was asked to leave the building and proceeded to do so escorted by Mr CD, Head of Employee Relations. He was then escorted from the building by security on the instructions of Mr AB’s personal secretary, Ms EF when he had already been leaving the building. Arising from this incident, Mr AB and Ms EF made complaints against the Complainant which are currently subject to a formal investigation under the Respondent’s Workplace Charter by a third party appointed by the Respondent. On 14th May 2015, Mr CD came to the Complainant’s place of work and publicly suspended him on pay pending the outcome of the investigation.

The Complainant makes various complaints about his suspension and seeks to have same lifted. In particular, he contends that (1) Mr CD suspended him publicly in front of other employees, (2) he was given no opportunity to address the complaints prior to his suspension, (3) the calling of security in relation to the incident in question was unnecessary and not a valid reason for his suspension, (4) Mr CD should not have made the decision to suspend him as a conflict of interest arises in so far as his direct line manager, Mr AB is the main complainant and (5) as the main complainant, Mr AB has since left his employment his continuing suspension cannot be justified. At this stage, the Complainant has been suspended for over 18 months and the investigation is still ongoing. It was submitted that his ongoing suspension is causing him considerable stress, is adversely affecting his reputation and is putting him at a financial disadvantage in respect of performance related bonus pay. He has been certified as fit to return to work by the CMO following an examination on 14th June 2016, who also noted that resolution of this matter will alleviate any stress. The Complainant also takes issue with the length of time the investigation has taken and he attributes the delay to difficulties obtaining documentation and CCTV relevant to his defence from the Respondent. He contended that his interview with the investigation board cannot be completed until he is in receipt of same. Further to making several requests under the Data Protection Acts, he has also submitted a complaint to the Data Protection Commissioner which is pending conclusion. A further issue was raised regarding the Respondent writing directly to his home address including to an incorrect address rather than sending documentation to his Union Representative as previously requested.

When the Complainant and his Union Representative on his behalf were questioned, they confirmed that they had no difficulty with the investigation board or the manner in which it had conducted the investigation to date. When I enquired as to what documentation was still outstanding and holding up the investigation, they referred to documents that had not yet formally been requested and conceded that at this stage, most of what has been requested has been furnished albeit that it had been a drawn out process. They confirmed that an unpixilated copy of CCTV footage was still being sought but Data Protection issues had been raised by the Respondent in circumstances where the pixilation was used to disguise other members of staff. The Solicitor for the Respondent also questioned who was on record for the Complainant as both the Union Representative and a firm of Solicitors had been acting on his behalf and this had led to communication difficulties and delays in the process. The Union Representative confirmed that he should be the only point of contact in relation to this matter in the future. It was also put to the Complainant that the incident subject to the investigation was also the subject of criminal proceedings. The Parties were in disagreement as to whether the matter was for hearing or just for mention before the District Court the following week but both agreed that there was no certainty as to when these proceedings would conclude.

Respondent’s Submission and Presentation:

The Respondent seeks to have this dispute dismissed on the basis that the Complainant has raised no issue with the integrity of the procedures adopted by the investigation board appointed in question and had signed his agreement to the terms of reference. In this respect, reliance is placed on the Labour Court decision in Bord Gais Eireann -v- A Worker AD1377 which stated: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court...

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