ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00022920

Parties:

	Complainant	Respondent
Anonymised Parties	A Manufacturing Operative	A Pharmaceutical Company

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00029339-001	27/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00029339-002	27/06/2019

Date of Adjudication Hearing: 06/02/2020

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

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

The Employer had written to the WRC prior to the oral hearing to set out its position that the Worker had referred identical complaints to the WRC under the Payment of Wages Act, 1991 and the Industrial Relations Act, 1969. The Employer submitted that Section 6(2) of the Payment of Wages Act, 1991 prohibits duplicate proceedings and double recovery in relation to a complaint in respect of a deduction made by an employer. The Employer indicated in this correspondence that in circumstances where it had not been notified of the withdrawal of either compliant that it was objecting to the hearing of the dispute under the Industrial Relations Act, 1969.

Both parties and their respective representatives were in attendance at the oral hearing on 6 February, 2020. At the outset of the hearing, I addressed the issues of jurisdiction with the parties which had been raised by the Employer in correspondence. I informed the parties that the WRC had notified the Employer by letter dated 18 July, 2019 (following receipt of the complaint/dispute) of its right to object to an investigation of the instant dispute by an Adjudication Officer in accordance with the provisions of Section 36(1) of the Industrial Relations Act, 1990. I also informed that the parties that the Employer had not notified the WRC of any such objection within the statutory 21-day period and, in the circumstances, that I was therefore obliged to proceed with my investigation of this dispute. The Worker’s representative confirmed at the oral hearing that the complaint under the Payment of Wages Act, 1991 (CA-00029339-001) was withdrawn.

The Employer’s representative sought a brief adjournment of the proceedings to consult with its client, which I duly granted. On resumption of the hearing, I was informed by the Employer’s representative that the Employer did not wish to partake in the proceedings in relation to the dispute under the Industrial Relations Act, 1969. The Employer subsequently withdrew from the hearing.

The Worker’s representative indicated that the Worker wished to proceed with the investigation of the trade dispute under the Industrial Relations Act, 1969. In the circumstances, I proceeded to hear the submissions on behalf of the Worker in relation to the dispute.

Background:

The Worker has been employed by the Employer as a Manufacturing Operative since 1 September, 2006. The Worker contends that he was punished by the Employer for raising a grievance. The Worker contends that the Employer used the company bonus scheme to punish him by reducing his bonus due to performance issues. The Worker contends that he was treated unfairly in respect of the reduction on his bonus and is seeking to have the dispute adjudicated upon in accordance with the provisions of Section 13(9) of the Industrial Relations Act, 1969.

The Employer disputes the claim and indicated at the oral hearing that it was objecting to the hearing of the dispute under Section 13 of the Industrial Relations Act, 1969. As a result, the Employer confirmed that it did not wish to participate in the proceedings.

Summary of Complainant’s Case:

The Worker submits that he enjoys working as a team member for the Employer and had worked without incident for 12 years prior to the events which gave rise to this dispute. He submits that his attendance would not have been perfect as he had a heart transplant several years ago and as a result, medical appointments are necessary which leads to absence. In early 2019, the Worker had a concern that he wanted to discuss with his Manager. The Employer refers to grievances as “Dealing with Concerns”. This was the first occasion that the Worker had ever raised a grievance, as he had an exemplary work record and had never been subjected to any form of disciplinary action.

The Worker raised a grievance with his Manager, Mr. A, at a meeting on 16 October, 2018 in relation to a complaint that he had been displaced in the workplace. The Worker contends that this meeting was quite volatile and did not end well. The Worker contends that in his attempt to explain his grievance Mr. A repeatedly stated: “where is this going and you are not clear”. It was obvious to the Worker that Mr. A was very impatient with him. The Worker contends that at one point that Mr. A moved his left hand to his temple and rotated two fingers around in a circle and stated: “you’re psychotic”. This left the Worker extremely confused and upset.

The Worker submits that Mr. A continually stated that he was getting the Worker’s line manager into the. The Worker submits that he did not want his Line Manager, Mr. B, present as he viewed this as two against one. The Worker was happy to go ahead with the meeting so long as he had his representative also. Mr. A ignored the Worker’s concerns and objections and dialled Mr. B’s number. With this the Worker stated that he was leaving the room as this was against his wishes and proceeded to walk away. The Worker contends that he was 10 feet outside the office when he heard a roar from Mr. A shouting “don’t walk away from me, get back here”. The Worker walked back into the office and asked why. Mr. A asked him to step away from him and said: “we don’t do this sort of thing on site” and the Worker replied: “what do you mean are you saying you want to take this outside”. The Worker submits that Mr. A opened the door and gestured to him to leave, which he subsequently did.

The Worker submits that these two managers approached HR and stated that they wanted him to be disciplined. He submits that HR gave advice to attempt to resolve the matter informally and inhouse, however this did not take place.

The Worker made the following submissions in relation to the events that transpired following the meeting with Mr. A, namely:

· Management decided that he had engaged in unacceptable behaviours arising from this meeting and sought to discipline him.

· Management wanted to enforce discipline without ever putting an issue forward to him and denying him his right of reply.

· There was no investigation launched or complaints lodged but management simply decided that he was not going to receive his full bonus, and this was all attributable to their unchallenged opinion. The Complainant’s bonus for 2018 was subsequently reduced by 50% with the result that he was at a loss of €1,316.96.

· He raised his concerns and worked through all stages of the grievance procedures and the Employer was in breach of its obligations under S.I. No. 146 of 2000 by failing to follow due process and in a fair consistent manner.

· He attended many meetings with various stages of dealings with concerns regarding an appeal of his bonus and investigation into threatening behaviour he encountered from Mr. A. The appeal in relation to the reduction of the bonus was not upheld. The Complainant of intimidation by Mr. A was also not upheld.

Summary of Respondent’s Case:

The Employer confirmed at the oral hearing that it did not wish to participate in the proceedings in relation to the dispute which had been referred for adjudication under the provisions of Section 13 of the Industrial Relations Act, 1969. The Employer did not make any submissions in relation to this dispute.

Findings and Conclusions:

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and concerns a claim by the Worker that the Employer’s decision to withhold a portion of his bonus payment for 2018 was unfair and unwarranted.

The Employer did not participate in the investigation of this dispute and I find that it is regrettable that the Employer did not avail of the opportunity to explain its version of events giving rise to this dispute.

The Worker submits that the Employer operates a discretionary performance-based bonus scheme and he claims that his bonus for 2018 was unfairly reduced by 50% by way of a punishment for him having raised a grievance under the internal procedures. The Worker contends that the performance appraisal process which resulted in the reduction of his bonus was procedurally flawed and manifestly unfair as a consequence of him having pursued this grievance.

Having carefully considered the uncontested submissions of the Worker, I find that the Worker’s bonus was reduced by 50% for 2018. In the absence of any contradictory submissions on behalf of the Employer, I find that the process which resulted in the said reduction of the Worker’s bonus was tainted by procedural unfairness.

In the circumstances, I recommend that the Worker should be paid the balance of the bonus payment for 2018, being the amount of €1,316.96, which he claims was unfairly deducted from him by the Employer.

Decision:

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

I recommend that the Employer should pay the Worker the sum of €1,316.96 being the balance of the bonus payment for 2018 which he claims was unfairly deducted from him.

Dated: 3rd April 2020

Workplace Relations Commission Adjudication Officer: Enda Murphy

Key Words:

Industrial Relations Act, 1969 – Section 13 – Trade Dispute – Bonus Payment