ADJUDICATION OFFICER RECOMMENDATION
Adjudication Recommendation Reference: ADJ-00003297
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00004821-001 | 25/05/2016 |
Date of Adjudication Hearing: 25/08/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969,I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Care Assistant | A Care Centre |
Complainant’s Submission and Presentation:
The complainant was dismissed on 10th December 2016. Following an appeal, a decision issued on 28th January 2016 stating that he should be re-instated to his role from 10th December 2015. Although he was put back on the payroll from that date, he was not allowed to return to work. His union communicated on a number of occasions with management seeking a return date for the complainant to return to work. However, despite these communications and a voluntarily undertaken psychological assessment which should have facilitated his return, the complainant still has not been allowed to return to his work. He seeks compensation for loss of earnings and for the adverse treatment by his employer. |
Respondent’s Submission and Presentation:
Matters have moved on since the complainant’s initial claim and he was dismissed from his employment effective from 12th August 2016. It is submitted that the adjudication officer therefore does not have jurisdiction to adjudicate on this dispute. The complainant’s dismissal arose as a result of an allegation against him of verbal, psychological and physical abuse against a resident in the respondent’s care centre. The complainant appealed his dismissal and the then Chairman of the Board upheld the appeal (February 2016) and ordered re-instatement as a result of due process issues in the disciplinary procedure. This Chairman and the Board subsequently resigned and a new Chairperson and Board were appointed in April 2016. The new Board overturned the previous Chairman’s decision to re-instate the complainant and this was communicated to him on 12th August 2016. Given the fact that matters have moved on significantly, it is submitted that the Adjudication Officer does not have jurisdiction to hear the claim.
Recommendation:
In relation to the preliminary jurisdictional issue raised by the respondent I find that the only impediment to investigating a dispute (not pertaining to a body of workers elaborated upon in section 13 (2)) is contained in section 13 (3) (b) as follows:
“(b) a rights commissioner shall not investigate a trade dispute –
(i) If the Court has made a recommendation in relation to the dispute, or
(ii) If a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner”.
As no such impediment exists I find that I have jurisdiction to hear this dispute.
I note the substantive issue referred here concerns the fact that the complainant was not returned to work following his re-instatement by the former Board and the issue of loss of earnings was raised at the hearing, specifically loss of premia.
Having considered the evidence and submissions, I note the decision to dismiss the complainant has been taken by the new Board and I consider that it would be premature for me to make a recommendation while a further case may be pending.
However, at the conclusion of any further claim, should there remain issues of loss of earnings to be resolved the complainant can submit a case for adjudication on that issue.
Dated: 22 November 2016