Complainant

Respondent

Anonymised Parties

A Worker

A Road Safety Organisation

Representatives

Barnaba Dorda SIPTU

Muireann McEnery Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00043026

12/03/2021

The worker has a grievance regarding an election process which was conducted to elect employees to an employees’ forum in the workplace.

An election for a representative on an employee / management forum was held on 13th August 2020.  There was a tie between the complainant and another employee. On 19th August the company decided to extend the time for voting as they said a number of the employees did not vote.  This raises the question that the vote was not in fact a secret ballot as it should have been under the constitution of the forum.  There are a number of issues to be addressed.  The first is the secrecy of the ballot has been infringed by the company and this is a serious issue in respect of the rule of democracy and the secret ballot as provided for in the constitution of the forum.  Secondly, changes to the forum constitution were carried out by the company without consultation.  Thirdly, the complainant was denied fair procedures.  It is argued that the complainant was elected albeit on a tied vote and the company, by extending the voting time, deprived him of his position.  The complainant’s complaints went through the company’s grievance process, however, his complaints were not upheld.  Following this, there was a mediation process.  The complainant wanted his representative to be present but the company did not allow this.       

Following the holding of the election to the forum, the complainant sent an email to the HR Manager, HR Generalist, General Manager, Operations Manager and the independent verifier on Friday the 17th of August at 8pm asking why the elections were not completed by secret ballot and requested that the election process be redone. The results for his region were closed on the 19th of August and results communicated. HR responded on the 19th stating, “As per custom and practice and as detailed out in the constitution, the nominations and elections were completed by email. You were made aware this process would remain the same along with all other Operators on the 22nd of July. At no point did you raise a concern, which all operators were invited to do”  The complainant then lodged a formal grievance and the outcome was that his grievances were not upheld on the following basis:

1. The email election ballot was conducted as per precedent set from the beginning of the establishment of the Forum. The company provides facilitation of the process for the forum only and this process was completed to custom and practice.

2. The constitution is a 2-page document and does not call out for every eventuality that may occur within the workings of the forum. No previous precedent was set in relation to tied votes and the forum constitution speaks to one representative per region only.

3. The company facilitated a nomination and election ballot process based on precedent set from the forum’s inception.

The complainant appealed the decision.  The appeal was not upheld for stated reasons.  Mediation was offered.   The complainant responded that he wanted to have his representative present. HR explained that mediation involves only the parties and the mediator themselves. The complainant decided not to proceed with mediation as he felt that this was in breach of SI 146, Codes of Practice on Grievance and Disciplinary Procedures.

Concurrently with the above process, a nomination and election report which was produced in the aftermath of the election was shared with the forum for review and discussion.  This report highlighted the complainant’s initial concern before it became a grievance and his identity was kept confidential. A decision was made to ballot employees on the following options:

Option A - Current Forum Representatives remain in place as per recent 2020 nomination and election process with the view of amending the process for future nominations and elections going forward.

Option B – Entire nomination and election process is restarted for all areas and if required, voting will be held by secret paper postal ballot by an independent third party.

Option A was carried. The Forum Constitution was updated on the 25th of March 2021 to include the following point:

In the event a negotiation process is underway at time of re-election, the representative will stay on until the negotiations are complete. As this year is a pay negotiation year, the next round of nominations and possible elections will take place in Jan 2023 or when a pay deal is achieved.

The constitution was also updated to state that any election going forward would be facilitated by an agreed third party.

The Respondent’s position is that the election held in August 2020 was held in accordance with the Forum constitution as interpreted by custom and practice. All previous elections had been carried out in the same manner without challenge. The forum constitution at that time did not cater for the scenario that arose and a decision had to be made on how to proceed in a manner that was fair to all involved. It was the view of the Respondent that allowing all operators the opportunity to vote was the best way of achieving a fair outcome which would both potentially break the tie between the two candidates and also lead to an outcome that the majority had in fact voted for. The Claimant was in fact seeking a change to the custom and practice around the election process without consultation with the forum while at the same time raising a grievance about allegedly unfair processes. It is clear that the fairness of the processes was not the main concern of the Claimant, his goal was to be elected regardless of the fairness or otherwise of the process used. The Respondent also committed to reviewing and updating the constitution in consultation with the forum once the elections were complete and a report was produced. Following this report a number of consultation meetings were held with the forum to discuss with them the content of same and consider any amendments that might be needed to the constitution following the concerns raised by the Claimant. As already outlined, substantial changes were made in consultation with the forum following on from this review. These changes included; a) That any election going forward would be facilitated by an agreed third party b) That in the event a negotiation process is underway at time of re-election, the representative will stay on until the negotiations are complete. These changes addressed the grievances raised by the Claimant but did so in a fair and transparent manner and most importantly in consultation with the forum.

Conclusion.  The Respondent refutes the claims made by the Claimant for the reasons as outlined above and requests that the Adjudicator finds in their favour.

I note that the situation which occurred regarding the tied vote was unprecedented and the respondent moved to allow more employees concerned to exercise their vote.  However, as the respondent has stated, the process was carried out by email as had always been the case.                    I note that all relevant staff voted on the options outlined in the respondent’s submission and by a majority decided that the current forum representatives remain in place as per recent 2020 nomination and election process with the view of amending the process for future nominations and elections going forward, so to recommend a rerun of the election or a sharing of the term would fly in the face of democracy.

This decision which was made democratically has effectively drawn a line under the matters and has pointed the way forward. The company has moved considerably to improve the process going forward and I note that future elections will be facilitated by an agreed third party.  This should ensure fair process for the future elections and I can make no further recommendation on this dispute.

Dispute over employee representation election process.  Not upheld.