Complainant

Respondent

Anonymised Parties

A HR Lead

A Healthcare Provider

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-00019397-001

24/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019403-001

24/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019404-001

24/05/2018

The worker has been employed by the employer since 1983 and is employed as Lead Role/HR. The worker’s regularisation in his current role was the subject of a previous Adjudication Decision (ADJ-00004174). The Decision in that complaint found in favour of the worker and ruled that he be regularised in the position of Lead Role/HR in line with the decision of an agreed Arbitrator that issued in May 2016.

Adjudication Decision No: (ADJ-00004174) issued on 16th November 2016 and was not appealed by the employer. However, the decision was not implemented until June 2017. The worker is seeking an explanation as to why he was the only worker who was not regularised in line with the arbitration decisions, an apology from the employer in relation to the unfair treatment of him, compensation for the distress suffered as a result of the employer’s actions and the discounting of five months of sick leave from his employment record.

The parties furnished written submissions at the adjudication hearing. Further information was requested and was submitted to the WRC after the adjudication hearing had concluded. The most recent date of receipt of additional information was 15th November 2018.

The worker stated that the regularisation of his current role was the subject of an Arbitration hearing with an agreed arbitrator. The complainant contends that all other workers who were deemed suitable for regularisation by the arbitrator were regularised whereas in his case, he was informed that the arbitrators decision would not be implemented.

The worker stated that he attempted to meet with senior management to seek an explanation into the particular circumstances of the refusal to regularise him to the position of Lead Role/HR. The worker stated that, ultimately, there was no resolution of the matter and he referred the matter to the Adjudication services of the WRC. (ADJ-00004174 refers).

The worker pointed out that the Arbitration process was agreed between Management and the Trade Unions and both sides agreed to be bound by the arbitrator’s decision. Despite this, Management refused to implement the decision but did not raise any issues with the arbitration process after the decision was issued and did not appeal the Adjudication Decision on that dispute when it issued in November 2016.

The worker contends that management simply refused, without explanation, to conclude an agreed process in relation to the regularisation. The worker stated that the actions of the employer were underhand and malicious and were directed at him personally, and that no other worker was treated in the same way.

The worker contends that the inordinate length of time he spent trying to resolve this issue had a detrimental effect on his health and he became ill as a result. The worker stated that he was absent from work for five months and was hospitalised for a number of weeks as a direct result of management’s actions.

By way of a preliminary point, the employer stated that the subject matter of this dispute has already been addressed in the previous Adjudication process which had found in favour of the worker. The employer confirmed that the arbitrator’s decision has been implemented with retrospection paid to 1st October 2013.

The employer cited the cases of Henderson v Henderson (1843) 67 ER 313 in relation to its contention that the dispute is “res judicata” and that the worker cannot re-open the subject matter of the dispute as it has been dealt with in the previous adjudication process. The employer also cited the cases of Top Security Ltd v Dan Bolger RPD 184, In Re Van Holdings [2010] 2IR and Cunningham v Intel [2013] IEHC207 in support of its position in this regard.

In conclusion, the employer stated that this process should recommend that no further steps need to be taken by either party.

There are certain matters within this dispute that were dealt with in the previous adjudication process such as the non-implementation of the arbitrator’s decision. The reasons why the arbitrator’s decision was not implemented were put forward by management during that process. Accordingly, I do not intend to re-visit that issue in relation to the worker’s request for a further explanation.

I am of the view that the issues that have occurred since Adjudication Decision No: ADJ-00004174 issued in November 2016 are properly before me for adjudication. The issues include the delay in regularising the worker’s role (some six months from the date of the Adjudication Officer’s Decision), the apology which the worker has sought, the issue of compensation and the discounting of the sick leave.

In relation to the apology sought by the worker, the employer stated that its actions were not directed at him personally and had already stated its reasons for its previous decisions. On this issue I recommend that the worker accepts the employer’s position that it was not intended to be in any way personal towards him.

In relation to discounting the worker’s sick leave, I find that it is outside my remit to recommend on this issue as such matters are normally considered by an organisation’s Chief Medical Officer in line with agreed policies and procedures.

In relation to the compensation sought by the worker, I fully accept the level of stress and upset that was caused to him. The previous adjudication decision issued on 16th November 2016 and recommended that the arbitrators decision be implemented. The employer did not appeal the Adjudication Decision, yet it was not implemented for approximately six months with no satisfactory explanation given to the worker. I find that this delay, given the entire history of this dispute, was neither fair nor reasonable.

Having considered the submissions of both parties, I find that an award of compensation is appropriate in all of the circumstances of this dispute. I recommend that the employer pay the worker compensation in the amount of €10,000.00