Complainant

Respondent

Anonymised Parties

A Council Employee

A County Council

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-00021901-001

17/09/2018

The Complainant is seeking an independent third party investigation into whether he recorded other staff or not on his mobile phone.

The Complainant is employed since 2000.

In November 2012 the Complainant was suspended as a result of allegations he recorded four of his colleagues without their knowledge.

The Respondent completed an investigation into the matter and the Complainant was suspended for three years.

The Investigation did not uphold the allegations that had been presented.

In the course of the Investigation the Complainant provided clear independent technical reports which had confirmed that no such recording had been made on the Complainants mobile phone.

The Complainant was transferred into an administrative role and the issue of whether the recording had taken place has not been dealt with internally and by the Labour Court.

The Complainant has been seeking the Respondent to lodge a third party investigation through the Grievance Procedure but to no avail and they continue to deny him his right to the investigation.

The Complainant is seeking an independent third party investigation into whether he recorded other staff on his mobile phone.

The Respondent raised a preliminary matter that the Adjudicator has no jurisdiction to deal with the matter relying on the provisions of Section 13.3 (b) 1 of the Industrial Relations Act 1969 which provides that an Adjudicator will not investigate a trade dispute if the Labour Court has made a recommendation in relation to the dispute.

It is a matter of fact that the Labour Court in two decisions (the two Decisions were provided but are not listed her to retain the anonymity of the Complainant) have already made recommendations in relation to the dispute. It is clear that the decisions of the Labour Court are on all fours with the subject matter before the Adjudicator.

It is a well settled principle of law that once a cause of action is finally determined by a Court or Tribunal competent jurisdiction in favour of one party against the other, then that cause of action cannot be litigated again as between the same parties.

The Complainant submitted the same claim under a previous Adjudicator claim.

Central to the Complainants claim for an independent third party investigation into the alleged phone recording is that four other staff either jointly or singularly have attempted to get him removed and or dismissed from the Respondents employment.  

In arriving at my conclusion I have taken into account the following:

The Complainants right to a fair process

The Respondents objection to my jurisdiction to adjudicate on the claim on the basis of Section 13.3. (b) 1 of the 1969 Industrial Relations Act.

The findings of the Internal investigation into the Complaints that date back to incidents in 2012 which would now be hard to verify with the elapse of so much time.

The fact that there is no current threat or process in place which could lead to the Complainant being “removed and or dismissed from the Respondents employment”.

That matters related to the issues involved have already been adjudicated upon a number of times by both WRC Adjudicators and Complainant appeals to the Labour Court.

The general rule in “Henderson v Henderson” that prevents an issue being” litigated” twice.

The legal advice and conclusions from the Respondents own investigation and legal Department which stated “However the allegation made in this case is fully in dispute and cannot be independently established” and “The lack of conclusive evidence that the mobile phone was recording makes it, in my opinion, unsafe to find against (the Complainant) on the grounds of whether or not the phone was on record”.

That the Complainant transfer arose primarily from the loss of mutual trust that had irrevocably broken with his colleagues and not specifically to do with the recording or not of a phone conversation.

Decision Number LCR21511 from the Labour Court is an appeal by the Complainant against the Recommendation of an Adjudication Officer decision in r-158141-ir-15 stated the background to the case as follows” This case concerns an appeal of the findings of an internal investigation into complaints issued by several of the Workers colleagues that he had secretly taped their conversation. This had affected the trust and moral of his shift”.

Section 13.3 (b) 1 states the following “A Rights Commissioner (now an Adjudication Officer) shall not investigate a trade dispute if the (Labour) Court has made a recommendation in relation to the dispute. “

Having given consideration to all of the above and in particular Decision LCR 21511 from the Labour Court I consider that based on Section 13.3 (b) 1 of the 1969 Industrial Relations Act I am precluded from issuing a recommendation on the specific claim as the substance of the issue in dispute has already been dealt with in LCR 21511 and that no current disciplinary action exists or was furnished as evidence that could lead to the Complainant being “removed and or dismissed from the Respondents employment”.