Complainant

Respondent

Parties

Máire  Aherne

National Council For Special Education

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Katherine McVeigh BL instructed by Eversheds Sutherland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00042741-001

27/02/2021

The Complainant filed her complaint with the Workplace Relations Commission on 27 February 2021 as against her employer, the Respondent.

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant and one witnesses, Mr Tadgh O’Leary, from the Respondent swore an affirmation and gave evidence at the hearing.

It is the Complainant’s complaint that she was penalised for having performed the functions of an employee representative pursuant to Schedule 3 of the Employees (Provision of Information & Consultation Act, 2006.

The Complainant has been employed as a Special Education Needs Organiser since 1 September 2004. She works 37.50 hours per week and is paid €2,502.95.

It is the Complainant case that she was penalised by the Respondent for raising a Covid19 safety concern. After she raised her concern , the Respondent continued to penalise her by initiating performance management process in a manner which did not comply with the terms of Civil Service Management of Underperformance Policy. The Complainant sought to address her concerns , including that a manager was disseminating inaccurate information about her, through the Dignity at Work policy was advised it was a work-related issue. The Complainant than raised a grievance against the managers involved in penalising her for raising a safety concerns but it is her complaint was “dismissed out of hand” by the Respondent and she was referred back to the Dignity at Work policy.

The Complainant submitted that she has no faith in the Respondent’s willingness to investigation a complaint under the Dignity at Work policy in a fair, impartial and objection manner given her experience to access the Policy in recent months.

Preliminary Objection

In response to the Respondent’s objection, the Complainant gave evidence that she “found herself taking on the role of lead representative”. The Complainant referred to the Covid19 Work Safely Protocol which refers to an employee representative.

On 24 August 2020, the Respondent issued a clear instruction to the Complainant and other SENOs with regards to planning, preparing and attending for essential school visits. The Complainant refused to carry out this instruction at the time despite ongoing engagement. On 14 September 2020, the Complainant was subject to a Disciplinary Hearing due to her failure to follow a reasonable instruction. A final written warning was issued to the Complainant on 17 September 2020. The Complainant has had the benefit of a robust appeals process following the issuing of a final written warning, in which most recently an external independent investigator, MP Guinness BL, concluded that the Complainant failed to follow reasonable instruction by the Respondent.

It was submitted that a year later in August 2021, the Complainant is still refusing to carry out this reasonable instruction from the Respondent, despite remaining an employee of the Respondent and being paid full salary.

Preliminary Objection

It is the Respondent’s objection that this complaint has been misconceived.

The 2006 Act does not apply to the Respondent nor the Complainant. As stated by Regan and Murphy,1 the 2006 Act:

“does not confer an automatic or absolute right on employees to be consulted or informed. Rather… the provisions do not apply automatically but must be triggered by a request made by the employer by a minimum percentage/number of employees.”

The 2006 Act is triggered either by an employer of its own initiative or by at least 10% of its employees. This has not occurred in any way and therefore the 2006 cannot apply in this matter.

Further, to remove any doubt, the Complainant is not an “employees’ representative” within the meaning of the Employees (Provision of Information and Consultation) Act 2006 and the Act does not apply to the Complainant.

Section 6 of the 2006 defines an “employees’ representative” and provides:

“6.— (1) In this Act, “employees’ representative” means an employee elected or appointed for the purposes of this Act.”

The term “appointed” is defined in s.1 of the 2006 Act as follows: “appointed” means, in the absence of an election, appointed by the employees and the basis on which that appointment is made may, if the employees so determine, be such as is agreed by them with the employer.

Section 6 continues to provide the process whereby an employee is elected or appointed for the purposes of the Act:

“(2) Subject to subsections (3) and (4), the employer shall arrange for the election or appointment of one or more than one employees’ representative under this section”

(3) Without prejudice to section 11, where it is the practice of the employer to conduct collective bargaining negotiations with a trade union or excepted body, employees who are members of a trade union or excepted body that represents 10 per cent or more of the employees in the undertaking shall be entitled to elect or appoint from amongst their members one or more than one employees’ representative for the purposes of this Act.

(4) The number of employees’ representatives (if any) elected or appointed under subsection (3) shall be determined on a pro rata basis by reference to the number of other employees’ representatives (if any) elected or appointed under this section.”

Article 8 of the Industrial Relations Act 1990 (Code of Practice on Information and Consultation) (Declaration) Order 2008 (S.I. No 132 of 2008) (hereinafter “Code of Practice”) identifies how representatives are appointed and provides as follows:

“How are information and consultation employees' representatives elected?

8.3 It is important to note that it is only in the Standard Rules provisions of the Act where the requirements regarding the election of employees' representatives, are detailed.

8.4 Employees' representatives must be elected in a ballot, according to the principle of proportional representation, in an agreed process organised by the employer, or in the absence of an election, appointed by the employees. The employer is responsible for associated costs”.

It was submitted that the Complainant was not appointed or elected under the 2006 Act, which does not apply to the Respondent in any event, and therefore cannot pursue a claim under this Act.

Preliminary Objection

Section 6 defines an Employee Representative:-

“6.— (1) In this Act, “ employees’ representative ” means an employee elected or appointed for the purposes of this Act.

(2) Subject to subsections (3) and (4), the employer shall arrange for the election or appointment of one or more than one employees’ representative under this section.”

Of most significance in the Act is the right to consultation does not operate automatically as provided for in Section 7 of the Act. The Respondent has denied, nor has there any evidence to the contrary presented to me, that the employer initiated the process itself (Section 7 (1) (a)) or there was a written request of at least 10% of employees (Section 7 (1) (b)). 

In the absence any evidence that Section 7 has been compiled with, I find that Complainant was not appointed as an “employee representative” within the meaning of Section 6 of the Act and therefore, could not be penalised as a result.

For the avoidance of any doubt the Lead Worker Representative referred to in the Covid19 Work Safely Protocol does not fall within the definition of Section 6 of the Act.

I find the complaint is not well founded.

I find the complaint is not well founded.

Consultation – Employee Representative – Not Well Founded