ADJ-00004298

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004298

Dispute for Resolution:

Date of Adjudication Hearing: 08/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle 

Procedure: 

In accordance with Section 13 of the Industrial Relations Act 1969, following the referral of the dispute to me by the Director General, I investigated 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:

Complainant’s Submission and Presentation:

This claim is linked to ADJ 3978 and was lodged with the WRC on July 20, 2016. The complainant is a Dutch national and commenced work with the respondent initially as an Independent Contractor on 20 January, 2014.She accepted a permanent contract as a direct employee on 29 June 2015 and received a new contract to reflect that status, she received a salary of €38,000 per annum.

Her claim emanated from the respondent not providing criteria for determining pay improvement, a refusal by the company to apply a pay increase and a lack of career opportunities at the company.

The complainant submitted that her annual review of salary included in her contract of employment had been deferred until September 2016. She submitted that she had compiled a number of emails which she had forwarded to her manager from 29 June -20 July seeking a salary review, and a claim for incremental credit. In addition, she sought some information on benchmarking norms considered by the company .The claimant was not satisfied with the managers response which referred to

“Salary reviews are based on our contract with our customer and are dependent on satisfactory individual performance, conduct etc.”

The complainant commenced working under protest pending the resolution of the issue .By August 2016, she had lost faith in the company and terminated her employment in September .The claimant contended that her treatment surrounding the pay review was tantamount to bullying .

Respondent’s Submission and Presentation:

The respondent denied both the claim and the Trade Dispute .The respondent submitted that the claimant was paid at the higher end of the scale and a pay review was anticipated by the company in September 2016. The company was satisfied with the claimant’s performance.

The company had a significant upheaval at the Operational HQ in August 2016 as a take over was expected in November 2016 and work was underway in issuing direct employment contracts to Independent contractors . In addition, some foundation work was also underway on performance management systems which would be linked to pay reviews.

The respondent confirmed that the claimant had left their employment in September 2016

Recommendation

Section 13 of the Industrial Relations Act ,1969 requires me to investigate the claim and make a recommendation to the parties .It is important to note that this recommendation must be read in tandem with my findings in ADJ 3978 as both cases were heard simultaneously . The case was referred by the Union, but on the day of hearing the claimant was accompanied by a colleague.

I have listened to both parties oral presentation and I have considered the written submission from the claimant. I find that the definition of a Trade Dispute can be found in the Industrial Relations Act, 1990 which redefined “trade disputes” as:

Any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of, or affecting the employment of any person.

I find that the circumstances surrounding the claim as advanced by the claimant constituted a Trade Dispute.

The claimant set out the background that she had received 12.5% pay rise while she was a contractor after completion of one year. She also submitted that she had received a sub 2% pay rise as she received her contract of service in June 2015.She asked for a 12.5% pay rise in 2016. The respondent was unwilling to meet this request but sought to propose that a new performance management system linked to pay was in contemplation and the company expected to implement this later in the year.

I find that the claimant referred her case to the WRC on July 20 in advance of the activation of the company grievance procedure. I appreciate that the claimant was vague in relation to the grievance procedure , however, the claimant was represented by the Union at that point and the road map permitted under Statutory Instrument 146/2000 may have been useful. I note that probation was waived in the claimant’s case once she made the transition to direct employment. I note that the claimant was keen to explore promotional opportunities also .

I have concluded my investigation and I find that while I can identify the claimants frustration and impatience with the inconsistencies she witnessed in the transition from contractor to direct employee, which were compounded by her remote worker status from Operational HQ, I find that I cannot make a recommendation for compensation in this case as

1 Internal procedures of dispute resolution were not actioned in relation to the three aspects of the claim.

I can however make a recommendation that if the claimant returns to work for the respondent within the next six months that these issues of grievance are addressed by Human Resources on a 1:1 basis with an opportunity for face to face contact on a protected time basis. It is regrettable that a high functioning employee felt the need to leave her employment.

Dated:   22 March 2017