Claimant

Employer

Anonymised Parties

An Administrative Assistant

A University

Representatives

Chris McNairney

Human Resource Department.

Act

Dispute Reference No.

Date of Receipt

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

CA-00031795-001

23/10/2019

This case involves a highly sensitive work-related issue on behalf of the claimant, an Administrative Assistant.

The claimant brought an earlier complaint before the WRC, which was heard in June 2019. This case resulted in an agreed Recommendation.

It is the circumstances of the implementation of that Agreement which has now returned to the WRC. The date of complaint is 23 October 2019.

The Claimant was represented by a former colleague, who presented written submissions. The University was represented by the Human Resources Dept, who also presented a written submission.

The Employer forwarded details post hearing which were shared with the claimant.

The claimant is seeking a recommendation for payment of €12,400 in financial loss, compensation for the loss of AVC through delay in implementation and exemplary damages.

The Claimants representative outlined a long period of unease and interpersonal difficulties in the claimants working life prior to her attendance at WRC in June 2019.

At that hearing she sought a restorative package of measures to enable her to return to work as she had been compelled to take alternative work outside the University.

The Claimants representative placed a lot of emphasis on the efforts made to resolve the claim at WRC in June 2019 and exhibited a summary of the final page of the Recommendation dated 17 June 2019, 5 days post hearing.

The Recommendation reflected that the claimant should accept the Employers offer, which was summarised as:

1. Re-instatement on full pay from 2017 to 2018, followed by part time of two days per week from August 1, 2018, “until she is offered a 2-day week by the Employer “This payment was to be made by 31 July 2019 and was subject to the deduction of Temporary Rehabilitation Remuneration paid to November 2018.

2 Acceptance of a post at 2 days per week “which will be made to her in the very near future “

3 A Good will payment and Confidentiality clause.

It was the Claimants case that the Proposals were accepted in good faith, but the claimant has since faced a tardy implementation which resulted in the Employer linking the payments with the claimant’s actual return to work, which took place in December 2019.

This disregarded the spirit and definition of the wording of “re-instatement “and caused the claimant to have a less beneficial implementation. Deductions for revenue purposes were far more than that anticipated by the claimant and were not commensurate with the respective tax year in which they referred. The Claimant was unable to get the Employer to relent on this. She has been unfairly hampered by an accumulation of statutory deductions amounting to €25,702.76.

The Claimant contacted Revenue but was unsuccessful in seeking a revision. The Claimants witness at hearing submitted that he understood that it would be to seek a more favourable tax application to an aspect of the restorative payment.

In addition, the claimant was regrettably delayed in accessing a restorative position and this deviated from the intentions of the Agreement. The claimant’s representative expressed some doubt on the alleged timing of letters of offer sent to the claimant and argued they were misrepresented.

The Claimants representative submitted that the Employer had resiled from a mutually agreed settlement of a long running dispute, causing the claimant financial hardship in the summer months of 2019. It also prolonged her stress, already intense, following her negative experiences at work.

In submitting a breakdown of the sum claimed, the claimant’s representative outlined that the claimant had missed the opportunity to make an AVC payment in Summer 2019. Payment for sick leave had ceased in November 2018.

The Employer in this case is a University and first came on record in response to the claim on 11 June 2020. The response to the WRC outlined that the Employer was unaware of the referral until they received notification via the Presidents Office.

Some days later 15 June 2020, the Employer declined the invitation to a remote hearing in the case stating:

“Adjudication X has been fully implemented, all recommended monies have been paid to the claimant and she has taken up a permanent post for the required days as requested “

In advance of the hearing in the case, the respondent made a written submission, summarised as:

The Complainant had settled a long running complaint involving serious inter personal difficulties at work. This settlement was committed to writing on an Adjudication Recommendation date 17 June ,2019. The Employer respected this Agreement, which they argued came into being on acceptance of the WRC proposals.

The Employer set about implementing the agreement which had finance and placement objectives for both parties.

The Employer accepted that there was a delay around implementation of the agreement but disputed that this was accompanied by bad faith. Instead, they advanced the submission that the Human Resource staff were newly appointed, and it took some time to scope out and present the proposed post to the claimant. Following which, she had expressed some concerns on tenure, qualifications and representation. The Employer apologised for the delay.

Once the claimant provided a return date for taking up the post, the remainder of the agreement was implemented. This involved payment of arrears and a dedicated settlement award.

By then, the Employer understood that they had honoured the agreement recorded on the WRC Recommendation and were disappointed to be back at the WRC again.

The Claimant had not formalised her dissatisfaction with payments received. The Employer was satisfied that the claimant had a successful transition back to work and wished to move forward.

In responding to the Claimants representative, the Employer submitted that rules around Revenue treatment of retrospective payments had changed through “Pay Modernisation “and helpfully shared an email where this point was developed post hearing. The Employer argued that the claimant had no suffered no lose through a December payroll payment rather than July payroll payment.

I have listened carefully to both parties at hearing and I have considered the submissions raised by both parties.

The historical backdrop to this case fed into the WRC hearing of June 12, 2019. I cannot re-open these circumstances as both parties entered a “without prejudice” set of discussions which were dedicated to securing a workable return to work for the claimant following a long, arduous routing.

These without prejudice discussions led to a set of proposals raised by the Employer and incorporated into a WRC Recommendation on June 17, 2019. This document was issued to both parties within the usual format i.e. opportunity for acceptance or referral to Labour Court in a prescribed period.

Neither party can rely on negotiations or any terms put forward during negotiation outside of the terms of a final agreement.

I note that the claimant was mistaken in her perception of this as she continued to refer to discussions within the “without prejudice “discussions. I received the final page of the Recommendation alone. I note that the claimant did not record official acceptance to this set proposals aimed at navigating a respectful return to work until 16 July 2019. At that point, she referred to Agreement “on the day “However, proposals cannot be termed an Agreement until all terms are agreed.

I have concerns regarding the Res Judicata “a matter decided “element of this case. The claim was finalised on a “full and final settlement” basis, complete with confidentiality clause. In my view, this amounts to a “Compromise Agreement “The claimant was represented throughout this case by a former colleague with past association with the Employer. I appreciate that many “Compromise Agreements “underpin a persons agreed departure from an Organisation . This Compromise Agreement provided for a Restorative gateway for the claimant to her employment after some time “in exile “. It is a very important document .

These proposals which crystallised into an Agreement on 16 July 2019 were clearly meant to be a Bridge building exercise where implementation was necessary to make progress towards a post conflict recovery and sustain the claimant in a dignified and respectful return to work.

However, the circumstances surrounding implementation have led to a profound recurrence of conflict which needs to be addressed by both parties if the parties are going to move onto the same page.

Therefore, I have found it both fair and reasonable for me to consider the circumstances around implementation as the matter remains unresolved for the claimant from a human rights perspective and is proving an obstruction to her accepting closure on her earlier case.

I am not prepared to re-open and reconstruct the financial compensation as that was settled by agreement on a “full and final basis “and finality  in that regard must prevail.

I have however, found flaws in both party’s approach to the implementation of the settlement. I did not establish a lack of will from either party regarding implementation, but rather a “remoteness in communication “and an over reliance on “email communication “which while useful is a partisan mode of communication at best. It is not a platform for sensitive negotiations.

I have taken some time to consider both parties submissions in this case. As a considerable period has passed since this claim was received by WRC, I asked the claimant to clarify whether implementation of the WRC proposals had resolved any of her claim, given that her return to work in first week of December 2019 was swiftly followed by the financial settlement? I was informed that the claim stood unaltered.

I was troubled that the claimant had recorded the President of the University as the contact person for the claim when her earlier contacts had been through the Human Resources Dept at the University. This led to a significant delay in securing the attention of the Human Resource Dept.

The claim to the WRC in October 2019 had predated these events and I would have thought that some of the matters would have been compromised. The claimant had not activated the University grievance procedure to accelerate dispute resolution. This seems to have arisen from the claimants chosen representative not being embraced by the University.

What followed was regrettable as the claimant resorted to very direct and personal emails in her bid to get back to work.

I asked the parties what framework they had used to effect implementation in this case. I learned that it was an informal pathway. I found this pathway to be insufficient to affect the rebuilding of trust necessary in this unique case and would have preferred a direct process of engagement covered by an agenda and specific target dates. The responsibility for this rests with both parties, as both parties owned the Agreement.

I cannot accept that there was any intentional mistreatment of the claimant during implementation. I note that the Implementers were newly appointed and finding their feet in a large Organisation.

However, a return to work after a period of over 3 years ought to have been project managed with more proximity, support and in person. I am pleased that the claimant has secured a job she now enjoys. This is a testament to both party’s commitment in the case.

Having heard the party’s submissions, I can see some merit in this Dispute and while holding some reservations regarding the absence of the pre-requisite for a grievance to be exhausted prior to referral to the WRC, I would like to make some recommendations for a suggested way forward for the parties without disturbing the “full and final settlement “of the earlier Agreement.

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

There has been significant inter party communication shortfalls in the implementation of the WRC Restorative Agreement, which was favourable to the claimant and which has secured a dignified return to work following a very fraught period.

However, some issues remain unresolved and require a formal communication framework to effect closure on this fraught period.

The University has made a significant financial investment in welcoming the claimant back to work, I recommend that this be matched with a dedicated trust building exercise surrounding

1. Financial management of Point 1 of the Agreement within Revenue rules. Implications of delay in payment to December 2019.

2   Opportunity to repay an AVC for 2018, if possible

3 Deduction in relation to Income Protection Scheme

I recommend that the University appoints a mutually accepted Facilitator to lead an inter party meeting within 4 weeks of this paper, where both parties outline their positions regarding the three noted items orally and in writing based on the date of Agreement date of 16 July 2019.

I make this recommendation as it mirrors the mechanism where Agreement was reached via the WRC and allows the parties to continue to own their local Agreement.

I see no basis for including the “job “in this plan as this is now settled and the delay acknowledged by the Employer. The Claimant should no longer feel “shut out”.

Parties should then negotiate a mutually agreeable recorded action plan, if possible, to effect closure in this case. This should be reviewed at three monthly intervals until closure is finally recorded.

I wish the parties well in their endeavours and hope that an early closure is achieved in everyone’s best interests.

Tardy Implementation of an Agreed Settlement