ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00009728

Parties:

	Complainant	Respondent
Anonymised Parties	A Health Care Worker	A Care Home

Representatives

D. Kavanagh of Des J Kavanagh, HR Consultancy Limited

Respondent Legal Affairs Manager

Complaint(s):

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-00012736-001	24/07/2017

Date of Adjudication Hearing: 12/12/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The dispute concerns a complicated and difficult Investigation into matters allegedly occurring in the Care Home at the centre of the dispute.

An initial Adjudication Hearing took place on the 12th October 2017. Giving notice of less than 24 hours the Respondent did not attend this hearing. The message received was in essence that the Hearing was premature and that further local discussions were warranted.

These discussions took place prior to the Resumed Hearing and a process was agreed between the Parties as to how the Investigation could proceed. The question of the Complainant’s costs to date remained outstanding

1: Summary of Complainant’s Case:

The actions of the Respondent in this case have been wilfully protracted and intransigent particularly as the procedures involved are well known and nationally agreed between the Parties or their respective National Organisations.

The tactics of the Respondent have involved the Complainant and her Representatives in much unnecessary work and costs.

Although not a normal claim the Complainant is seeking a contribution of €3,000 towards her costs to date.

2: Summary of Respondent’s Case:

Extensive correspondence between the parties was presented in evidence. The Respondent maintained that the Complainant’s Representatives had engaged in vexatious tactics to distract and frustrate matters.

Thankfully the discussions between the dates of the initial Hearing and the resumed Hearing appeared to have largely resolved procedural issues and an agreed process concerning the main issues was now in train. The restoration of the Complainant to full pay was of significance in this context.

The question of costs in an Employment situation was always a matter for the parties. An Adjudication Award of costs in this context (when the main Independent Investigation had not even commenced) would be entirely without precedent and would be unwarranted.

3: Findings and Conclusions:

3:1 The Law and Practice Generally

The awarding of costs, especially Representational Costs, in Employment related disputes is not provided for in the Industrial Relations Acts.

However, to take a broader look the practice of the former Employment Appeals Tribunal was very infrequently to award travelling expenses to parties. Costs were not awarded to any person who is appearing before the Tribunal in a representative capacity, whether it be a claimant, Respondent, solicitor, barrister, trade union official or official of an employers’ organisation.

A witness or a party to a case could be awarded expenses, generally traveling, if it was considered that the claim before the EAT was a “frivolous and vexatious” claim. Awards of this nature were infrequent in the extreme.

Costs may be awarded under the National Minimum Wage Act 2000 Section 26

(1) (ii) reasonable expenses of the employee in connection with the dispute

Again, this has largely been limited to Travelling expenses and not the costs of retaining Representatives, Trade Union Officials or Legal Representatives.

I could not see much in this material that could be transferred easily to the Case in Hand. In common Industrial Relations situations, the costs of the parties, especially the Complainant’s are addressed in a final Industrial Relations Agreement outside of any legal requirements.

3:2 Consideration of the Case in hand.

I was very pleased to note that matters now appeared to have gotten back on an even track. A most eminent Independent Investigator has been agreed and the commencement of his work was awaited.

As regards the proceedings /exchanges that predate the Hearing it would not be helpful from an Industrial Relations point of view for me, as an Adjudicator, to even attempt to comment or express an opinion on these. It is best regarded in Industrial Relations terms as “water under the bridge” and should be left at that.

I am sure that the Complainant’s very seasoned and most experienced Representative, can more than adequately, even if obliquely, get the issue of the Complainant’s costs and expenses considered at the appropriate Industrial Relations time.

To make a Recommendation on Costs and Expenses at this stage (when the Independent Investigation has not even commenced) would not be helpful as regards the Industrial Relations climate in which the Investigation has to proceed.

Accordingly, I am not Recommending any awards of costs of expenses at this juncture.

Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Act	Complaint/Dispute Reference No.	Summary Recommendation
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00012736-001	The claim is rejected. No award of costs as claimed is Recommended.

Dated:26th April, 2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

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