Complainant

Respondent

Anonymised Parties

CE Scheme Supervisor

Community   Employment Scheme

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-00009820-001

21/02/2017

The Complainant is a Community Employment Scheme   Supervisor in employment with the Respondent since 6^th December   2006. In March 2016, she was the   subject of a complaint against her from a colleague.   Her dispute with the Respondent is that   the Respondent breached its own grievance and disciplinary procedures and   acted at variance with the provisions of S.I. 146 of 2000 in denying the   Complainant of her right to representation.

A detailed written submission was presented summarised as   follows:

In March 2016, there was a disagreement between the   complainant (Ms A) and her work colleague (Ms B) regarding allocation of   rooms. Some attempts were made by the   CEO and it appeared that the issue of rooms allocation had been resolved by   end of March 2016.   However, on 11^th   April 2016, the CEO sent an email to the Complainant with the heading   “Complaint” which came from Ms B.   The   CEO indicated in his email that he would be in contact with Ms A regarding   “the process involved”. A meeting was   subsequently arranged by the CEO wherein he agreed to facilitate the meeting   between the parties. Following a   request from Ms A for clarification of the objectives of the meeting, the CEO   advised her that as the issue involved a formal written complaint the   company’s grievance procedure was the process involved. On 5^th May 2016 a meeting was   held at which Ms A apologised to Ms B for any offence caused. However, the meeting broke up without   resolving the matter.   Following an   exchange of emails between Ms A and the CEO she became concerned that he had   made up his mind that she was at fault, and as no proper investigation had   been held, she contacted her Union.   Emails were exchanged between the Union Official and the CEO, wherein   the CEO refused to release any information and noted that “the complaints are   still under review”.   Further emails   were exchanged between the Union Official and the CEO culminating in the CEO   stating that they would no longer engage in any further correspondence with   the Official.                 In June   and July 2016 the CEO engaged in direct correspondence with Ms A wherein he   referred to Ms B as “victim” and stated that an unqualified apology was being   sought from Ms A from Ms B and that “such unconditional terms are not nor   will be negotiable”.

In December 2016, as no investigation had taken place, the   Union Official tried to seek an informal meeting with the CEO to move the   matter forward. Then on 21^st   December 2016 the Union wrote to the CEO effectively stating that as the   matter was abandoned by the employer, they were now seeking to have the   matter expunged from Ms A’s file and if there were any further references the   matter would be referred to WRC. On 13^th   February 2017 the Chairman of the Board wrote to Ms A stating that Ms B   wished to escalate the matter to a formal grievance and as the facilitator   could become a witness, the complaint would be passed to a third party. The Union pointed out that the complaint had   been referred to senior manager in the first instance, bypassing stages 1 and   2 of the procedures and the respondent was in breach of their own   procedures.   Further correspondence   between the parties in February 2017 involved the Respondent Chairman seeking   the Official to recuse himself, accusing him of being subjectively biased and   stating that if Ms A refuses to confirm her agreement to participate in the   third party investigation “within 5 days” “it shall be on condition that she   is refusing a reasonable instruction”.     The Respondent also stated that it would not be engaging in the   Section 13 of the Industrial Relations process as the matters are “pursuant   to an employee accused of bullying and are not relating to a party to a trade   dispute as prescribed under the legislation”.   This was the first time since   March 2016 that the word bullying was used.                 Further correspondence in   March 2017 involved the Union Official confirming his representation of Ms A   and the Respondent confirming its rejection of the Official/demanding that he   recuse himself.     “This is our final position and we will if   necessary write to the Irish Congress of Trade Unions complaining at your   management of this matter and if necessary we will have to reconsider our   willingness to work with you going forward”.  

In August Ms A was presented with terms of reference for   the purported investigation. She did   not sign or return the document. The   Union Official wrote to the Chairman outlining his reservations regarding the   process, including there having been no involvement in selecting the person   appointed, no involvement with agreeing the terms of reference and the   investigator having requested and received a follow up ”letter from Ms B with   no opportunity to respond given to Ms A.       The Union has no faith in the process for the reasons cited above.

In conclusion, the Complainant seeks that the Respondent   recognises her right to avail of trade union representation of her   choosing. Numerous Labour Court and   Employment Appeals Tribunal decisions were cited in support : LCR 1364 Dunnes Stores and Mandate,   LCR2023 Microsemi and A Worker, and UD25/92 O’Brien v Asahi.                                                                                                          The   Complainant further contends that the procedures used are null and void and   that all references to the investigation should be expunged from Ms A’s file,   and that she be compensated for the mishandling of this whole issue.

The Complainant’s trade union representative wishes it to   be noted that in his contention, as a publicly funded organisation, the   Respondent has an obligation to engage with the Industrial Relations   mechanisms of the State and that it is not satisfactory for them to refuse to   do so.

The Respondent did not attend the hearing. A postponement was sought on 22^nd August 2017 on the basis that the process was still part of an internal  procedure. The postponement was refused by WRC, and the Respondent then wrote to state they would not accept  the jurisdiction of the WRC, would not attend the hearing and would not be accepting any recommendation.

As the Respondent did not attend the hearing, I can only base my findings on the evidence put forward by the Complainant and her representative.  I note the Respondent’s position that they would not accept my recommendation. However, in good faith, I put forward the following findings and recommendation:

This dispute goes back to March 2016, when a disagreement occurred between the Complainant and a work colleague over the allocation of rooms. There was a heated exchange   between the parties, and a complaint made against the Complainant.

I note the attempt by the CEO to facilitate a resolution   of the matter in May 2016 but that meeting broke up without agreement.   From then, the matter escalated and became   embroiled in procedural difficulties, and clashes between the Union Official   and Management regarding the right to representation.

In relation to representation, it has long been   established that S.I. 146 of 2000 confers the right of representation of   one’s choosing on employees. This has   been underpinned by the Labour Court (AD1269 Kellysdan and A Worker).   In   this instant case, the Respondent sought on many occasions for the Union   Official to remove himself from the issue, and the Respondent also   communicated with the Complainant directly when she was being represented by   the Official. This resulted in no   agreement being possible between the Respondent and the Complainant’s   representative and the stalemate has had a negative affect on the whole   situation.   The position taken by the   Respondent was that on a unilateral basis, without consultation, an External   Investigator was appointed with no agreed terms of reference.   The Complainant’s evidence is that she   gave her co-operation to a meeting on 18^th September 2017 under   duress.   While I note that the   Respondent appointed an investigator without input from the Union Official, I   have no reason to believe she will not act with full fairness and   impartiality. However, I recommend   that the Respondent should put the investigation on hold and meet with the   Complainant and her representative to agree terms of reference going forward,   and an end date for the process.   Given   the fact that the issue is ongoing since March 2016, the process should have a finite end within two months of the date of this recommendation.