Complainant

Respondent

Anonymised Parties

A Van Driver

A Transport Company

Representatives

Self 

Peninsula

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-00033717-003

10/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00033717-004

10/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00033717-005

10/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00033717-006

10/01/2020

The complainant commenced his employment with the respondent in February 2012. He has been absent from work on sick leave due to an industrial injury in July 2019.

Complaint CA-00033717-005 was withdrawn at the hearing.

The complainant outlined the background to his complaints.

He said that he drew the respondent’s attention to a hazardous working situation, but was told to ‘get it done’; in other words to go ahead regardless of the risk.

He had a meeting with the respondent in September 2019 in the course of which his employer stated that; ‘this is going to turn nasty, you just watch’ on learning that a referral to the WRC was being considered.

The specific incident giving rise to all of the complaints was the fact that he had not been invited to the work Christmas party on December 23rd, 2019.

He says the failure to invite him was an act of discrimination and penalisation.

Prior to the complainant’s injury the complainant and the respondent enjoyed a very good working and personal relationship and he remains employed by the company.

The respondent has encouraged the complainant to return to work on numerous occasions and supported his attendance at occupational health consultations.

There is no basis to the complaint under the Industrial Relations Act, (CA-00033717-003). No complaints have ever been made by the complainant about bullying or anything else and no grievance has ever been submitted by him on any issue.

He has failed to establish a prima facie case under the Employment Equality Acts (CA-00033717-004).

No issue arises from the fact that he was not invited to the Christmas party that gives rise to a discriminatory ground.

The only reason he was not invited was that he was on certified sick leave.

It will be clear from what is outlined in the submissions, and it was clear at the hearing that the nub of the matter was the complainant’s very strong sense of grievance about his omission from the Christmas party invitation list.

He told the hearing that he was not even sure he would have attended but felt that he should have been invited.

Without diminishing the validity of the grievance in any way the issue that arises here is the appropriateness of the remedies sought by the complainant.

These will be addressed in turn.

Complaint CA-00033717-003 was made under the Industrial Relations Act.

The complainant referred in general terms to bullying and harassment but no particulars were offered, except perhaps in respect of the meeting between the parties on September 3rd 2019 at a hotel.

It is well established that remedies available under this Act only arise after the procedures established for the processing of grievances at the level of the workplace have been fully utilised and exhausted.

The reasons for this should be obvious. It is in the interests of the parties that they resolve conflict as it arises; quickly and directly between themselves, thereby eliminating the risk of delay and any longer-term disruption of relationships in the workplace.

For this reason too, but also because it could become overwhelmed with such disputes, the Adjudication service of the WRC cannot become a ‘court’ of first resort. This should be no surprise given the name of the institution; it is the Workplace Relations Commission and it must always do what it can to ensure that issues of an industrial relations nature are resolved there.

The Labour Court has made it clear (in INT 1014) that;

‘The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.’

This also applies to the Adjudication Service.

The complainant sought to say that he entered a grievance on September 13th, 2019 and that nothing was done.

This was directly contradicted by the evidence of the respondent HR Manager who produced evidence of an email of September 17th, 2019 inviting the complainant to a meeting to discuss any outstanding.

He did not respond to this invitation.

She wrote also on November 20th asking him to send a list of his grievances so that ‘we can arrange to meet to discuss them at a date that is convenient to you’.

On this occasion the complainant did respond stating;

‘As for sending you a list of grievances NO, your fine, I will not be sending a list of anything. I will however point out what is right and what is wrong in emails…’

And he continues in his response to be critical of what he described as ‘not acceptable behaviour’.

On November 26th the HR Manager repeated her offer to meet, saying; ‘If you change your mind regarding meeting to discuss your grievances, please let me know’.

His reply, on the same date gave no indication that he wished to.

So, this is several steps short of meeting the test set out above regarding the exhaustion of local procedures.

It is also notable that this grievance arose some three months before the Christmas party incident and related to the respondent’s attempts to get relations with the complainant back on track. Admittedly, and unfortunately given the parties previously cordial relationship, they were not successful, and each side blamed the other for this.

The respondent’s evidence was that the complainant rejected conciliation efforts telling him that it was ‘too late for that’ as matters were going to the WRC and the HSA.

However, the complainant subsequently failed to meet any of the criteria necessary to refer a dispute under this Act.

It would be a start if the parties could find a means of communicating with each other again and I make a recommendation below with this in mind.

Complaint CA-00033717-004 was made under the Employment Equality Act.

This complaint is without any merit whatsoever and the complainant failed to make out a prima facie case of discrimination. His omission from the invitation list was purely because he was on certified sick leave.

Complaint CA-00033717-005 was made under the Equal Status Act, probably in error. In any event as this Act relates to protection against discrimination in respect of the provision of goods and services it does not apply and was withdrawn.

Complaint CA-00033717-006 was made under the Protection of Employees (Temporary Agency Work) Act, 2012. This is misconceived; the complainant was not an agency worker.

Regarding complaint CA-00033717-003 I recommend that the parties avail of the services of an agreed, and qualified external facilitator in respect of all of the various issues which have given rise to the conflict between them.

For the reasons set out above I find complaints CA-00033717-004 and 006 not to be well-founded.

Complaint CA-00033717-005 under the Equal Status Act was withdrawn at the hearing.

Industrial relations, discrimination, grievance.