ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018767
Parties:
| Employee | Employer |
Anonymised Parties | A Cabin Crew member | An Airline |
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-00024184-001 | 17/12/2018 |
Date of Adjudication Hearings: 11th June 2019 and the 4th December 2019
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).
Pre-Hearing Discussions between the Parties. – the 11th June 2019.
Prior to the formal opening of the Adjudication Hearing on the 11th June the Adjudication Officer reminded the Parties that the case was under the Industrial Relations Act, 1969.
The aim of the Industrial Relations Act was to achieve ,if possible, an amicable solution to the issues in dispute. He noted that the Employee was of long service. From the submissions , which he had read in advance, it appeared to him that the required outcome to proceedings was a full and frank discussion between the parties to essentially lay a new foundation for a positive future working relationship.
At this suggestion the Parties engaged in a lengthy discussion which appeared to reach a set of acceptable proposals for all involved. As an immediate part of this settlement the Employer undertook to undertake certain steps to address the Employee’s concerns.
The Adjudication Officer, to be of assistance , agreed to incorporate the outcome of these discussions and proposals in a lengthy letter from himself to all parties.
This Adjudication Officer letter issued on the 11th June 2019. It was the stated position of the Adjudication Officer that the letter would form the basis of a settlement and, if required, could later be incorporated into a formal Recommendation.
Regrettably a local settlement did not prove possible and the issues returned for a full Adjudication Hearting on the 4th December 2019.
Background:
The issues in contention concern an allegation that the Employer failed to investigate an incident of alleged mistreatment. The Employee was seeking that the Employer issue her with an apology and correct all personnel records to show that they do not hold any negative impressions of her or her ability to serve the company. |
1: Summary of Employee Case:
The Employee submitted a detailed written submission and Oral evidence. Issues of concern over a number of years were adverted to. In particular an incident involving a Training Course held on the 1st June 2018 and the extensive follow up between the parties was referenced. An investigation by the Employer was cited as being Unfair and procedurally mishandled. The Employee strongly felt that she had been treated unfairly, without any dignity or respect, had been bullied & victimised and generally treated with scant regard to the duty of care incumbent on all Employers. She sought an unreserved Apology and a Statement that the Employer had no negative “Agenda” towards her and was fully and totally confident in her professional capacity as a member of the Airline staff. |
2: Summary of Employer Case:
The Employer submitted a detailed Written Submission completely denying the allegations made by the Employee. All procedures and Investigations relating to a Grievance or a number of Grievances had been properly followed and the outcome was in keeping with normal Industrial Relations norms. An Apology had been issued to the Employee from the Senior Airline Captain responsible for Training and Compliance. The matters in dispute could not be taken any further in any Industrial Relations context. |
3: Findings and Conclusions:
3:1 Opening Legal Point This case was referred to the WRC under Section 13 of the Industrial Relations Act,1969 and quoted below. Rights commissioners. 13 13.— F15 [ … ] (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner. (3) ( a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled— (i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and (ii) notify the Court of the recommendation.
It is important to make this point clear. The IR Act is not a precursor for other pieces of Civil liability legislation or a substitute for other Employment related Acts.
3:2 The Adjudication Officer Letter of the 11th June 2019 This letter was central to the resumed formal Hearing on the 4th December 2019. For assistance it is quoted below. Dear
Employee Legal representative
& Employer Legal representative,
I refer to our discussions this morning prior to the formal Adjudication Hearing commencing into this case – the matters surrounding the Training Centre in July 2018. The formal Hearing was deferred following our discussions.
In an effort to “rescue the person from the river” I make the following observations.
1. The Employer will ask Captain XX to look again at his letter of ther 15th October 2018 and to, if possible, remove the words “if you felt” in the second paragraph.
2. The Employer will correct any errors of a factual nature on the Employee’s file and in particular in relation to any recent incidents that pertain to this case.
3. The Employer will, without any reservation confirm that there is no campaign of Bullying, Harassment or otherwise being undertaken by the Employer against the Employee -Ms. S.
4. These observations will, after your comments are received, (hopefully before the 21st June) be incorporated into a formal Recommendation under the Industrial Relations Act ,1969 and the matter will then be regarded as closed and settled by both sides.
5. The Recommendation will hopefully amicably resolve this case, “rescue the person from the river” and will stand alone without any precedent value for any other issues or cases.
On receipt of your comments on this observations letter I will incorporate the matters into a formal Industrial Relations Act, 1969 Adjudication Officer Recommendation that will close this case.
Yours sincerely,
___________________ RC for Michael McEntee AO
Discussions on this letter followed in June . The Employer issued a letter of proposed settlement dated the 19th June 2019 and following further discussions a clarified letter of Apology, dated the 28th November 2019, to the Employee. Questions were raised by the Employee’s Legal team , regarding this letter of the 19th June , in an e mail of the 28th June 2019 – specifically the request that the Employer should reply in “an express term of utmost good faith” and giving details of “What enquiries have been made to verify that there is no campaign of victimisation directed at the Employee by the Employer”. 3:3 Formal Adjudication officer conclusions and formal Recommendation under Section 13 of the Industrial Relations Act, 1969. The local discussions that took place on or about the 11th June 2019, which resulted in the letter of the 11th June from the Adjudication Officer, were comprehensive. On the day (11th June) there was nothing to indicate that a reasonable settlement, that would allow the Parties to re-establish a good working relationship, was not being amicably proposed by both sides. The Employer letter of the 19th June 2019 and the further letters of Apology was a reasonable response from any Employer. The Employee response of requesting a statement of “A term of the Utmost Good faith” was hard to understand. The Author of the Employer letter of the 19th June 2019 is a Senior Executive of the Organisation. The Author of the Letter of Apology is a Senior Airline Captain with defined legal Civil Aviation responsibilities. In a case under the Industrial Relations Act,1969 neither Employer Executive can be presumed to be acting in anything but the utmost good faith.
3:4 In Industrial Relations Terms , under which this case was brought, “Continuous raking over of old coals” is a completely negative exercise. The Parties to this case need to recognise this good Industrial Relations maxim. The Industrial Relations settlement proposed in June 2019 offers an excellent foundation to build or more correctly rebuild a good relationship between the parties . Accordingly, my formal Recommendation is that the Adjudication officer letter of the 11th June (as set out above) and the Employer reply of the 19th June (plus later Apologies) be accepted by all parties involved as an equitable full and final settlement of this case.
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4: Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
My formal Recommendation is that the Adjudication officer letter of the 11th June (as set out above) and the Employer reply of the 19th June (plus later Apologies) be accepted as a full and final settlement of this case.
Dated: 19th March 2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
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