Putting Policies to the Test
By Deirdre Malone
21 June 2019
Last month the Labour Court examined Stryker Orthopaedic’s (“the Company”) Dignity at Work Policy following an appeal by its employee to a recommendation of the WRC.
While a decision under the Industrial Relations Acts is a recommendation only, it offers employers comfort to know that they can successfully withstand challenges to process and procedures by carefully following their Dignity at Work policy.
The original complaint (trade dispute) filed by the employee, represented by his union, disputed the process and findings of an investigation under the Company’s Dignity at Work Policy. The complaint related in broad terms to flexibility regarding the employee’s roster/working time.
In January 2016, the employee notified the Company’s HR department of his intention to pursue a bullying complaint against a number of members of management. There was lots of correspondence back and forth regarding the alleged complaint until it was ultimately filed in October 2016.
In accordance with the Company’s Dignity at Work policy, the Company appointed an external HR investigator to consider the complaint. Further time was lost before the investigation commenced due to the employee sustaining an injury at work. Ultimately the external investigator met the employee in March and a report was prepared and issued in June 2017.
External HR Report
The HR Investigator considered the appropriate burden of proof for his consideration of the issues to be “on the balance of probabilities”. The Investigator also held that that burden of proof was on the employee to show that his version of events was preferable, and interestingly, he went on to say that “where there is a material, substantial, or meaningful doubt attaching to any specific complaint made by the Complainant, [the employer] is entitled to the benefit of that doubt”.
The report also found that “many of the issues complained of … arise from [the employee’s] unrealistic sense and level of expectation in relation to the working time flexibility he demands. Such expectations cannot be met in a modern, demand led, shift working production environment”.
The employee’s Union challenged the burden of proof used by the investigator and appealed the contents of the report and its findings to the Company.
The Union ultimately accepted that the burden of proof applied by the Company was “not outside the norm”, however, where the burden of proof was placed on the employee to prove their version of events, there was a duty on the investigator to test that evidence. The Union alleged that the investigator failed to meet that duty by not interviewing a number of witnesses. In the Union’s view, there was a fundamental flaw in the process in not meeting and interviewing witnesses.
The appeal received an early hearing date (July 2017), however, it was adjourned to see if the employee’s complaint could be resolved through mediation. Unfortunately, facilitation/mediation did not work to resolve the issue.
For whatever reason, it took until January of 2018 for further correspondence between the parties to see whether or not the matter was resolved. In the meantime, the employee submitted his complaint to the WRC.
Notwithstanding that the employee had proceeded to seek external assistance through the WRC, the Company completed its internal process and issued the appeal outcome in April 2018. The appeals officer appointed (the HR Manager) rejected the appeal filed by the employee. She held that there were “justifiable reasons” why the HR Consultant had chosen not to interview certain witnesses.
The employee’s dispute was heard in August 2018. The Adjudication Officer, having considered the submissions of all parties, did not find in favour of the employee and accordingly made no recommendation for a concession of the employee’s claim.
In her conclusion, the Adjudication Officer made the following points:
- The Company commissioned an independent external consultant to conduct an investigation.
- All relevant people against whom the employee’s complaints were made were interviewed.
- Everyone was given the right to representation.
- The employee was represented by his union.
- The employee received copies of transcripts from all meetings throughout the process and was given an opportunity to comment on those, which he exercised.
- The Investigator did not uphold the employee’s complaint.
- The employee exercised his right to appeal. It was recognised that the appeal was suspended in an effort to resolve through mediation. Again, an independent external facilitator was provided for this process.
- Turning to the substance of the issues, the Adjudication Officer commented that they were operational issues concerning the allocation of shifts and in particular the employee’s request to change his allocated shifts. By way of comment, this was accommodated on approximately 30 occasions a year on average for the particular employee.
- In conclusion, the Adjudication Officer held that the employer had followed its own procedures and even if the assertions of the employee were true, which she did not comment on, she said that it “would not change the procedure as contended by [the employee]”. She held that the employee was “afforded a comprehensive and thorough process in respect of his complaints”.
On appeal to the Labour Court, the employee challenged the decision of the Adjudication Officer. The Labour Court upheld the findings of the Adjudication Officer and agreed with the Company’s position that they had followed their own Company procedures and that the employee’s complaint was fully addressed in that process. It also held, in terms of the appeal conducted by the Company’s HR Manager, that she had addressed the concerns he raised regarding witnesses not being interviewed in her outcome report. The appeal was dismissed.
It is extremely helpful to see the WRC and the Labour Court review and assess a process used under a Company’s Dignity at Work Policy. It is evident that the Company went to great lengths to ensure fair procedures for its employee.
It engaged an external Investigator to conduct the investigation. It followed its own policy by ensuring representation during meetings, sharing of transcripts of notes, by providing opportunities to comment on such notes, and ultimately giving the employee the opportunity to appeal the outcome of the investigation report.
What is helpful to note in the Labour Court’s decision is the fact that it specifically commented on the HR Manager’s appeal outcome, and the fact that she addressed the grounds of appeal filed by the employee so as to eliminate any possible argument that he did not have a fair appeal to the outcome.
The case offers a reminder to employers to review their Dignity at Work Policy to ensure that it is fit for use when called upon for the purpose of an investigation.