FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WATERFORD INSTITUTE OF TECHNOLOGY (REPRESENTED BY RONAN DALY JERMYN) - AND - A WORKER (REPRESENTED BY TEACHERS UNION OF IRELAND) DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Recommendation No(s)ADJ-00025068 CA-00031878-001 At the start of the hearing the Division of the Court sought to engage with the parties as the Court had some concerns as to whether the parties understood the role and the jurisdiction of the Court in Industrial Relations cases as opposed to Employment Right’s cases. The Court first raised the issue of the Data Protection statement set out on the cover of the Worker’s submission and advised that it could not agree to be bound by same. Following discussion with the Worker the Union Official advised the Court that the Worker was happy for the Court to use the submission accepting that they would not be bound by the statement on the front. The Court drew the parties, attention to the role of the Court set out under the Industrial Relations 1946 which is to try and resolve a dispute between an Employer and a Worker, the requirement under the Act in respect of representation at such a hearing and the requirement to have such hearings in private. The Court went on to advise the parties that in Industrial Relations disputes the Labour Court is the Court of last resort and that issues should only come before the Court when all the internal processes have been exhausted. The Court noted that in previous decisions dealing with issues arising from disciplinary procedures it has sent the parties back to complete the procedures before considering any issues arising from same. The Court noted that an Employer can ask a Worker to account for their whereabouts during working hours and if unhappy with the response can investigate further including invoking the disciplinary procedures. Any procedural issues that arise during the process should be raised but ultimately would normally form the basis of an appeal if the Worker was unhappy with the outcome of the process. The Court noted that in this case, which at this point had been going on for two years the parties appeared to have gotten lost in the procedures. In respect of the forms of redress sought the Court advised that issues such as damages , compensation for stress and anxiety, apologies etc were not Industrial relations remedies and were not within the gift of the Court in cases of this nature. The remedies available to the Court are to uphold, overturn or vary the decision of the Adjudication officer within the realm of Industrial Relations remedies. The Court indicated that it proposed to take a break to allow the parties to consider what the Court had outlined and asked the parties if they wished to comment. The Union Official on behalf of the Worker said he was appalled at what the Court had set out, that he felt the Court was hostile and bias and had made its mind up before it had even heard the submissions and that he would have to ballot his members for industrial action and advise them not to go to the Labour Court. The Court clarified that it had not made its mind up and that it was just ensuring that the Worker understood the role of the Court in a case of this nature and the remedies that were available. The Representative for the Employer indicated that they had no issues that they wished to raise. Following a short break, the hearing resumed and the Union Official advised the Court that they were not happy with how the Court was running the hearing, they felt the Court was hostile and biased and requested that the Division recuse themselves. The Union Official re-iterated that he would have to ballot his members for industrial action. The Employer’s Representative stated that they did not agree that the Court should recuse itself. This issue had been going on for two years and they wanted the hearing to proceed. The Court took a break to consider the request for recusal. When the hearing resumed the Court advised the parties that it was declining the request to recuse itself. It had set out for the parties the role and remit of the Court in a case of this nature and could not accept that the fact a party to the hearing did not like the facts as laid out by the Court could form a reason for the Court to recuse itself. The Court also felt that it could not allow a threat of industrial action by a Union Official to influence its decision in respect of the recusal application. The Court invited the Union Official to read the submission on behalf of the Worker. The Union Official stated that he was objecting to the Court’s decision not to recuse itself, he reiterated that he believed the Court was hostile and that he would ballot his members for industrial action on the basis that the Court was hostile and that he would tell his branch not to attend the Labour Court. He indicated that he wanted it noted that he was objecting to this Division of the Court hearing the case. Following numerous invitations form the Chair to read his submission the Union Official read the submission. The Union submitted that the manner in which the Employer had sought to engage with the Worker in respect of the concern they had relating to the 11th March 2019 did not comply with the agreed procedures. The Union submitted that the failure by the Employer to provide the Worker with a copy of what they believed to be a relevant email was a further breach of the procedure. The Employer by asking the Worker to confirm that she was giving them permission to approach the person who sent the email were putting additional requirements in place that did not exist in the agreed procedure. The Union noted that the procedure provided for an initial discussion between the Worker and their line manager and that this had not happened instead the Worker had received an email out of the blue asking her to account for herself during the period in question. The Union on behalf of the Worker felt they had no option but to instigate a grievance at stage 3 of the internal grievance procedure. However, the timelines set down in the internal grievance procedure were not adhered to and the issues with the disciplinary procedure have still not been resolved. The Representative for the Employer submitted that it had become aware of an email that had been sent by the Complainant to a cohort of students which raised a query for them in respect of the issue to hand. The Employer does not accept that it has not followed the procedure. It was its submission that it was making the allegations based on the email that was sent and not the email it received from a student and that the Worker having issued the email would have access to same. It is the Employer’s submission that the email in question is available on moodle. The Employer confirmed that it was making the allegation not the student who sent the email and therefore that email had no real relevance, but it had offered to go back to the student and seek permission to give a copy of the email to the Worker if the Worker was agreeable to them doing that. It was the Employer’s submission that they had sought to resolve the issue by offering an informal disciplinary process, but this was rejected by the Worker. Decision The Court having considered the submissions of the parties and the oral submissions made on the day recommends as follows; The root of the dispute stems from the issues arising in respect of the 11thMarch 2019 and that these issues need to be brought to a conclusion in order to restore an equitable working relationship between the Employer and the Worker. The Court notes that the Employer in their submission has referenced an informal procedure and that the Union on behalf of the Worker in their oral submission referenced the fact that an engagement had not taken place prior to the issuing of the initial email. The Court having reviewed the Recommendation of the Adjudication Officer believes the path set out in that recommendation with its initial emphasis on an informal procedure should be followed and the process should commence as soon as is practical after the issuing of this Decision. The Decision of the Adjudication Officer is upheld. The appeal fails. The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary. |
