ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  ADJ-00031342

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:             01/06/2021 & 07/09/2021

Location of Hearing:      Virtual Hearing via Webex Platform

Procedure:

This dispute pursuant to Section 13 of the Industrial Relations Act 1969 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 4th December 2020.  There was no objection to an investigation of this dispute by an Adjudication Officer of the WRC by the Employer under Section 36(1) of the Industrial Relations Act 1990.  Following delegation to me by the Director General, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held remote hearings of this dispute on 1st June 2021 and 7th September 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S. I. 359/2020, which designates the WRC as a body empowered to hold remote hearings. The hearings were translated by a Polish interpreter.  A copious volume of documentation including ongoing exchanges of correspondence between the Parties was furnished to the WRC by the Worker.  This matter was adjourned on 1st June 2021 for the Worker to avail of professional advice and agreement to a proposed course / talks with a further period of time allowed after the second hearing on 7th September 2021.  The Worker subsequently informed the WRC in writing that this dispute had not resolved, that he had been dismissed by the Employer and hence a recommendation was required.

Summary of Worker’s Case:

The Worker had been employed since 2005 as a baker in the bakery section of a store operated by a Supermarket Franchise.  The difficulties subject to this dispute arose following a transfer of undertakings to the current Employer in 2019.  In particular, the Worker complains that when the new Employer noticed that he had a poor command of English, he was moved from the bakery to shop floor duties in breach of his contract.  He was frequently called to meetings about this issue and felt harassed and discriminated against.  Consequently, he suffered from stress and his health deteriorated requiring him to take periods of sick-leave.  He also maintained that he was not being afforded a full 39 hour working week as per his contract / practice at the time of the transfer. 

The Worker disagreed with the Employer’s position that he had to improve his command of English such that he could work safely within the bakery and could competently label and advise on allergens.  It was common-case that he had refused to avail of English classes to be funded by the Employer.  He maintained that he had managed to undertake his duties as a baker for fifteen years without any difficulty.  He did not regard the requirement to improve his English as a performance issue and viewed this as a breach of contract.  He objected to being required to attend meetings to address same.  He pointed out there was another employee within the bakery with no English who was not being similarly treated.  The Worker sought reinstatement to his duties in the bakery without any requirement to improve his English along with a guaranteed 39 hour working per week as per his existing contract or redundancy.  He furnished a copy of his contract signed in 2011 outlining bakery duties with terms including that English is the store business language crossed out. 

Unfortunately, relations between the Parties deteriorated whilst this matter was before the WRC and during the second hearing, the Worker stated that he wished to be made redundant owing to the non-compliance by the Employer with his contract.  He rejected the various courses of action proposed by the Employer to remedy this dispute including a professional language assessment. 

The jurisdiction of the WRC in relation to industrial relations disputes under Section 13 of the Industrial Relations Act 1969 was outlined to the Worker.  It was explained that the WRC’s role was to assist Parties with finding a way to resolve their dispute.  Whilst the WRC can assist with the orderly termination of the employment relationship, it was not within the gift, remit or power of the WRC to direct an employer to make an employee redundant and/or pay statutory redundancy.  Notwithstanding same, the Worker maintained that this was the remedy he was seeking herein.

Summary of Employer’s Case:

A HR Business Partner and HR Manager outlined the Employer’s position and handling of this dispute with reference to the correspondence furnished.  It was confirmed that the Employer had taken over the Worker’s store within a Supermarket Franchise in 2019 under a transfer of undertakings.  It was accepted that the Worker was employed within the bakery under his existing contract.  During early interactions with the new management, it became apparent that he had difficulty understanding and communicating in English and an interpreter had been required.  The Employer advised him in writing that the business language of the store was English and the reasons for this, including health and safety, were outlined.  It also confirmed that the Employer wished to support him by funding English classes if he wished to avail of them.  The Worker did not avail of the English classes offered.

After further communication difficulties arose when discussing plans to revamp the store, a language assessment was arranged with the Worker.  The resulting report confirmed that he had approximately ten words of English and did not understand HACCP Regulations.  Serious health and safety concerns also arose following an incident whereby peanuts had not been labelled on a bakery product.  The Worker was absent from work for a period and upon his return, was allocated shop floor duties as deemed necessary for health and safety reasons.  A course of action was proposed whereby he would avail of English classes funded by the Employer, be reassessed periodically and when his English was deemed sufficiently proficient to enable him to safely resume bakery duties he could return to work in the bakery.  A proposed solution was also made regarding his working hours.  After initially agreeing to this course the Worker again refused to cooperate and an impasse ensued. 

The Employer also contended that the Worker had referred this dispute to the WRC without availing of its internal grievance procedures.  He had refused to engage with management and/or attend any meetings to discuss the subject matter instead copying the exchange of correspondence to the WRC.  Nonetheless, the Employer had engaged with the WRC with a view to resolving this dispute and had expended considerable resources in trying to deal fairly and reasonably with the issues raised.  There was no basis for redundancy and this was a performance issue to be properly managed internally.

Conclusions:

Adopting the commentary in the Labour Court Recommendation LCR22385, referral of Industrial Relations disputes to the WRC should be a last resort after all internal processes have been exhausted.  Furthermore, the role of the WRC in the exercise of this jurisdiction is to assist the Parties to find a resolution utilising industrial relations remedies.  The Worker essentially seeks a declaration of redundancy with commensurate payment.  As explained, it is not within the gift, remit or power of the WRC to declare a redundancy and/or direct such a payment in an industrial dispute. 

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.  After considering the respective positions of the Parties including the evidence, submissions and documentation submitted herein, on the merits of this dispute, I recommend no further action by the Employer.  As the Worker’s subsequent dismissal was not included and aired within this dispute before the WRC, it would not be proper to make any findings in respect of same.

Dated:   26th November 2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Role of WRC in Industrial Relations disputes - Labour Court Recommendation LCR22385