ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00005698

Parties:

Dispute:

Date of Adjudication Hearing: 17/02/2017, 21/04/2017 & 27/04/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969, following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2016, 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 of the WRC. The Complainant was represented by Cosgrave Solicitors and a HR and Operations Manager attended on behalf of the Respondent. I proceeded to hearing on 17th February 2017 and the matter was adjourned to facilitate talks between the Parties until 21st April 2017 and further until 27th April 2017. On 4th April 2017, Solicitors for the Complainant referred complaints under Section 7 of the Terms of Employment (Information) Act 1994 and Section 27 of the Organisation of Working Time Act 1997 (File Reference Number ADJ-00007919) to the WRC arising from issues related to this dispute. Having heard the closely related facts in relation to the dispute, both Parties agreed that I should hear the complaints. In the circumstances, and so as to ensure an impartial stance, I deferred making a recommendation in relation to this dispute until I had heard the related complaints on 4th September 2017, and have issued a decision in those complaints together with this recommendation. All oral evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration when coming to the recommendation.

Background:

The Complainant has been employed as a House Manager in a branch of the Respondent’s Entertainment Company since 1998. She seeks resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to a number of grievances which remain outstanding between the Parties. Whilst some progress was made in terms of addressing these grievances, unfortunately an impasse remains, the outstanding difficulties have become very entrenched, and the Complainant has been out of work on certified sick leave for a number of months citing stress related illness. It was common case that the internal grievance process had been exhausted.

Summary of Complainant’s Case:

The Complainant outlined the following outstanding grievances with the Respondent: (1) The Complainant has been a loyal employee of 19 years’ service with the Respondent and has an impeccable record. She earns €29,000 per annum and has never had a pay review in line with Company custom and practice and/or her contract. She is one of only a few managers of such longevity of service following internal restructuring. She contends that her salary should be reviewed in line with managers of a similar length of service and role which would equate to a salary of €35,000 plus per annum. It is quite clear from the Respondent’s accounts that it is operating at a significant profit. The Complainant feels undervalued and overlooked in this respect. (2) The Complainant has always reported to her direct Manager with whom she works alongside. However, since the Company restructuring, her chain of command has become increasingly unclear as evidenced by (a) the fact that she was drawn into a direct exchange of correspondence regarding health and safety issues and other grievances with the Operations Manager, and (b) she was subjected to a disciplinary process imposed directly by Head Office thereby bypassing her Manager. (3) Whilst there were initially difficulties agreeing a medical advisor in relation to the Complainant’s sick leave, it is noted that she now has no issue with attending with the last suggested Specialist. Issues arising in relation to the Complainant’s contract of employment have been adjudicated on in the related complaints under Section 7 of the Terms of Employment (Information) Act 1994. A sum of compensation was sought in circumstances where the Complainant had to obtain legal representation in relation to obtaining her correct sick pay entitlements and a consequent disciplinary process. However, I have addressed this issue within my decision on those complaints.

Summary of Respondent’s Case:

The aforesaid position was outlined on behalf of the Respondent in relation to these grievances: (1) Whilst it is not denied that the Complainant is entitled to a pay review in line with custom and practice and/or her contract, her salary was not reduced during the economic downturn and the particular Entertainment branch where she is based runs at a significant loss to the Respondent. (2) No strenuous objections were made on behalf of the Respondent to the Complainant retaining her existing chain of command but routine administrative issues are to be dealt with by Head Office. (3) The Respondent has engaged fully with Solicitors for the Complainant to agree an updated contract of employment with five drafts exchanging hands to date, and the final version is still to be signed off on by the Complainant. There is little in dispute between the Parties at this juncture.

Findings and Conclusions:

I heard this dispute in considerable detail over a number of dates and also afforded the Parties an opportunity to resolve matters. It is apparent that most of the issues arise from the absence of clear contractual employment terms resulting in interpersonal issues with the Operations Manager who had been handling all matters before engaging IBEC. Whilst some progress has been made and the Respondent agreed to removal of a written warning and/or records relating to a disciplinary process, unfortunately considerable difficulties remain unresolved with the Complainant remaining off work on certified sick leave. Given how entrenched the Parties’ respective positions have become, resolution of matters will require a proactive approach by the Respondent in terms of addressing the issues giving rise to this dispute and paving the way towards the Complainant’s return to work.

Recommendations: (strictly pertaining only to the facts of this Dispute)

(1) Subject to the Complainant being well enough to participate and upon confirmation by her own GP, I recommend that the Respondent arranges a pay review which should include a fair assessment of her position in line with managers with a similar service and role within 42 days of the date hereof. Any increase in her salary should be confirmed in writing and implemented immediately. I recommend that the pay review takes place before the Parties sign off on the updated contract of employment so that any change in salary can be incorporated within the updated contract. (2) Save for routine HR matters, I recommend that the Complainant retains her existing chain of command via her direct Manager and in particular, that all grievances are referred to this Manager at first instance. I further recommend that any future disciplinary matters are addressed via her direct Manager in accordance with the procedures provided in her updated contract of employment. (3) Noting that there is no difficulty with the Complainant attending the Respondent’s Specialist, her sick leave should also be proactively managed ensuring compliance with any legal obligations arising. (4) Failing a satisfactory resolution of the aforesaid matters within 42 days of the date hereof (inclusive of the Christmas period), I recommend appointment of an agreed independent mediator within a further 42 day period to assist with resolving any outstanding issues and if necessary to assist with the Complainant’s return to work, the costs of same to be borne by the Respondent. Failing agreement by the Parties, I recommend that upon the Complainant’s request, that the Respondent provides a list of three independent mediators within 14 days of that request and the Complainant selects one of those named mediators within 7 days of receipt of same. Thereafter the timetable should be directed by the appointed mediator. Resolution of these matters will only be achieved if the Parties adopt a more conciliatory approach to their communications and dealings. (5) Finally, I recommend that the current employment status quo remains between the Parties pending the determination of any appeal from this recommendation to the Labour Court.

Dated:   18/12/17

Workplace Relations Commission Adjudication Officer: Aideen Collard