Case Number: ADJ-00005245. Workplace Relations Commission

• Docket Number: ADJ-00005245
• Date: 01 June 2017
• Court: Workplace Relations Commission
• Parties: An OTC Assistant v A Pharmacy

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005245

Complaint(s):

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-00007298-001	01/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00007298-002	01/10/2016

Date of Adjudication Hearing: 25/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Ashdown Park Hotel

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution under Section 13 Industrial relations Act, 1969 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

The complainant withdrew CA 7298 – 002.

Summary of Complainant’s Case

The complainant stated that her objective in relation to the hearing was to receive confirmation that she was the victim of bullying in the workplace and to be compensated for that.

The complainant began working for the respondent in February, 2015. She was an OTC assistant. She worked full time on an hourly rate of €11.58. It all went well for a few days and then she noticed that the behaviour of the some other staff members began to change. She felt the behaviour was bullying in nature. The complainant was in a premises in the South East.

The complainant took issue with several individuals who worked with her. Some spoke to her in a demeaning way, some excluded her, some made accusations that were simply not true. One on occasion she was accused of taking an unscheduled break when she actually was using the toilet. She also gave evidence that after the toilet accusation the lock on the door was removed, which made her feel vulnerable when using the bathroom.

She also gave evidence about the lunch time routine. The canteen was very small and she was informed that one individual likes to eat her lunch alone in the canteen which meant that she had nowhere to eat her lunch. She was forced to go out to her car to have her lunch. That made her feel, excluded, isolated and belittled. In general the atmosphere in the South East store was tense and unpleasant. On one occasion she was so upset she had to leave work in the middle of a shift to attend with her general practitioner. That was due to the level of stress she was under as a result of how other staff members treated her.

The complainant moved to the Harbour town premises on the 16^th May, 2016 but things were no better there. The complainant and her partner, who had been together for many years and had a family together, decided to get married. The complainant called the registry office to book a date for the wedding. She got a date in August. They had to apply to the Courts for an exemption in relation to the three month rule. She also requested time off in August so that she could get married. Her request from time off was met with hostility. She was informed that time off in August in that particular store was forbidden as it was deemed a very busy period. The complainant was desperately upset that she was being forced to change the date of her wedding. Eventually, once the matter was referred to head office she was granted the time off. However she felt aggrieved that she had to fight for it.

The complainant took issue with the fact that the respondent did not commence an investigation following her contacting her area manager back when she was working in the South East premises. She stated that she had several meetings with various HR personnel, had spoken to her area manager about the bullying and nothing was done about it. When she did finally lodge a formal written complaint in May, 2016, the respondent was slow to address her concerns and even when they did the investigation was slow and lacking in detail. She felt like they didn’t take her complaint seriously and simply paid lip service to her issues.

The complainant took issue with the investigation. She felt that it was not a complete and thorough investigation. Several of the individuals who she had named in the complaint were not interviewed. On that basis she felt that the respondent could not haveestablished all of the facts surrounding her complaint and as a result the findings were flawed. She did not lodge an appeal. She felt after the investigate the respondent was basically tell her “we don’t care about you, you are rubbish” .

The complainant confirmed that she did receive a copy of the grievance procedures. She also confirmed that in total she worked 26 weeks in the South East premises and 8 weeks in the Harbour Town premises before she went out on sick leave. She stated that she couldn’t consider returning to work until the respondent acknowledged that she was the victim of bullying in the workplace and was compensated for same.

Summary of Respondent’s Case

The complainant commenced work with the respondent on the 09.02.2015 as an OTC Assistant. Her hourly rate was €11.58 (Average hours = 30 per week = €343.15).

The respondent takes no issue with the Complainant’s performance, or previous mystery shopping report results, which the Complainant referred to in her initial evidence and states that there is a job waiting for the complainant should she wish to , or when she is fit to return.

While employed with the business, the Complainant received a contract of employment along with a Company Handbook, which includes a copy of the Company Dignity at Work Charter, an Anti-Bullying and Harassment Policy, and the Company Grievance & Disciplinary procedure. Same were opened during the hearing. The Anti-Bullying and Harassment Policy clearly outlines how an employee can make a complaint if he/she believes they have been bullied or harassed in any way. This policy notes that an employee can resolve any complaint of bullying or harassment via an informal route or formal route (formal investigation once the complaint received in writing). In support of this Policy, the Company Grievance Procedure is detailed in the Company Handbook, which clearly states that if an employee is not satisfied with how their grievance is resolved, he/she may refer the matter to the HR Department. If no satisfactory solution is reached by the HR Department, the employee may appeal the matter to the Managing Director.

The respondent accepts that the Complainant initially notified her Area Manager, that she was not happy in South East store, by text on the 31st July 2015. The HR department was notified on 12th August. The Complainant was advised of the internal procedures available to her to resolve her perceived issues, and she was offered independent counselling. The Complainant decided not to use any of the Company internal procedures open to her in 2015. Once she changed her mind and requested a formal investigation after a meeting with HR Manager on the 29th April 2016, she then forwarded a written complaint to the Company (2nd May). The Respondent then took the necessary steps to conduct an investigation. However, the Complainant did not agree with the findings of the report and while represented, made the considered decision not to appeal the findings of the report. It is therefore clear that the Complainant did not exhaust the Company internal procedures available to her, and therefore did not act reasonably.

The Complainant notes in the WRC claim form that she was ‘bullied and harassed over a long period of time. The Complainant started with the Respondent in February 2015 and formally notified her Area Manager by...