Complainant

Respondent

Anonymised Parties

An Intermediate Care Operative

A Health Service Provider

Representatives

Tony Gregg NASRA/PNA

Graham Finlay Corporate Employee Relations Services

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-00021642-001

07/09/2018

This complaint was heard over two days, the first on 20 November 2019 in Limerick and the second day, 4 February 2021, by way of remote hearing.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings

The Employee was represented by his Union Representative while the Employer was represented by the Corporate Employee Relations Services.

The complaint relates to a grievance around a public holiday worked on 4 June 2018.

The parties were requested to address the issue of jurisdiction and s.13 of Industrial Relations Act 1969.

The following is a summary of the parties submissions only.

Preliminary Issue

The Employee stated this was not a collective case as each case was submitted separately. It was noted that the Employee was not attempting to obstruct or interfere with any other established process. 

Substantive Claim

The Employee is employed as a full time Intermediate Care Operative (ICO).

The Employee worked on the public holiday of 4 June 2018 as part of his roster rotation. The Employee claims that the Employer recorded this day as public holiday leave and consequently lost his public holiday pay and allowance together with 12 hour annual leave due to the deduction.

The Employee gave details at the hearing of the three occasion he was deployed on the 4 June 2018.

On 24 July 2018 the Employee outlined his grievance to the Employer who responded in writing by letter dated 26 July 2018. The Employer did not find in favour of the Employee. As part of Stage 2 of the Grievances Procedure, the Employee appealed to the Assistant Chief Officer who stated all grievances are on hold due to a conciliation process between his colleagues and their union.

In the absence of a conclusion to the conciliation process the Employee was left with no option but to refer the matter to the Workplace Relations Commission for a recommendation.

Reference was made to a Payment of Wages Act 1991 decision in ADJ-00015857 by the Employee’s representative. This case involved a colleague of the Employee who was successful in his claim for payment of the public holiday allowances.

The Employee states that he met with the Operations Manager in 2014 and was not advised of any changes or potential changes to the roster. He stated the first time he was notified of a roster agreement was by text message on Friday of the October public holiday in 2017 at 9.30pm. While he said that he was not rostered on this public holiday, it was understood from his knowledge that this roster agreement was no longer in place after that time.

The Employee seeks his appropriate rate of pay for the public holiday and reimbursement of his annual leave entitlement of 12 hours, a recommendation that until an agreement has been reached and signed by the parties that his normal roster rotation stay in place, consideration of ADJ-00015857 and a recommendation that the Employer has not met their obligation in keeping with the principles of the WRC Conciliation agreement or that of the terms of chapter two of the sectoral agreement.

Preliminary Issue

An objection was raised by the Employer stating that it did not recognise the Employee’s Union and therefore, has no negotiation rights. Furthermore, it argued that these disputes contravene existing collective industrial relations processes outside of the particulars of s.13 (2) of the Industrial Relations Act 1969.

On 19 December 2019 the Employer filed a submission and raised the following objections:

1.       Section 13(2) of the Industrial Relations Act 1969 precludes adjudication on a claim affecting a body of workers. This section clarifies a dispute may be referred to a rights commissioner ‘other than a dispute connected with rates of pay of, hours or times of work, or annual holidays of, a body of workers’. As this case relates to rostering on public holidays etc., it is the Employer’s argument that the on-going conciliation process is the appropriate process.

2.       Section 13(3) of the Industrial Relations Act 1969, allows for an employer to object to an investigation and does not contain any requirement to set out the grounds of the object, other than the objection must be done in writing within three weeks. We suggest the wording of the act is clear regarding Section 13 (3) (b) (ii); ‘A rights commissioner shall not investigate a trade dispute- if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner’. This requirement, namely objection made in writing, is also set out in section 36(1) of the 1990 Act and also required by Section 43 of the Workplace Relations Act 2015. In this regard we note as part of the WRC process to exercise Section 13 the form allowing an objection merely requires a ‘tick’ to notify an objection, which was completed by the Employer in the cases at issue. While we suggest there is no requirement to clarify a reason as set out in the Act, the Employees did actually provide reference of the on-going collective conciliation process.

At the hearing the Employer provided a copy of signed letters dated 12 September 2018 stating their objection together with correspondence to the WRC dated 13 September 2018, 19 October 2018, 19 November 2018, 3 October 2019 and 16 October 2019.

3.       In response to the Labour Court reference put forward to the Employee, the Employer was of the view that there is misunderstanding of Section 20 of the Act, separate to Section 13 of the Act. The Employer stated it is clear that the Adjudication Officer under Section 13 is subject to the parties being agreeable to an investigation and where there is an objection, the Adjudication Officer cannot investigate. This obviously does not preclude a new separate referral to the Labour Court under section 20(1) of the 1969 Act.

Substantive Claim

The Employer disputed the claim.

Preliminary Issue

My jurisdiction is limited by S. 13 (3) of the Industrial Relations Act 1969 wherein it states:

“(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.”

Section 36 (1) of the Industrial Relations Act 1990 states:

36.—(1) An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969 , by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.”

Having carefully examined the file the Employer was requested by the WRC as to whether it consented or objected to the hearing of the dispute by letter dated 11 September 2018. The Employer presented a signed copy of the letter objecting to the hearing together with the cover email advising that the addressee was no longer in the position and requesting that correspondence be redirected. Four further emails sent to two live WRC email addresses from the Employer setting out its objection. On this basis I am satisfied that the Employer properly objected to this hearing within the requisite 21 day period. Consequently, I have no jurisdiction over this dispute thereby prevented from making a recommendation.

The complaint is not well founded.

Industrial Relations – objection- grievance – jurisdiction