Complainant

Respondent

Anonymised Parties

An Employee

A Public Service

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-00039055-001

06/08/2020

The employee stated that he was issued with a mobile device on 11th February 2020, on receipt of which he signed acceptance and acceptance of the employer’s ICT policy.  On 26th February 2020 he was told by a senior officer that he was directed by another more senior officer that the employee must sign the employment’s code of ethics or the device would be withdrawn from him.  As the employee considered he could not sign the code of ethics, as it contained, in his view untrue statements the device was withdrawn and he returned it.  He submitted a grievance which was processed and heard under various stages of the grievance procedure.  Eventually in December 2020, the decision was made that there was no formal requirement to sign the code of ethics in relation to retaining the mobile device, and it was returned to him.  The employee is still seriously aggrieved at a number of elements to the situation.  These include the unacceptable delays in processing his grievance, the refusal of the employer to listen to his concerns about the wording of the code of ethics and the absence of explanations all along as to why the device was withdrawn from him, for no valid reason. On the 23nd of December 2020, the decision of the final appeal was that the employee’s mobile device was returned with immediate effect.   It was acknowledged that all associated documentation for the device does not require a person to sign the Code of Ethics. However, there was no explanation as to how this had only been accepted or discovered at this stage despite having been reviewed by two members of the Senior Leadership team. Nor was there any explanation or apology provided as to why it took 10 months to complete a process which should have taken less than 10 weeks which resulted in the employee being at the loss of his device and the resulting implications and risk associated with same. The employee at all times explained that in principle he understood the basis of the Code of Ethics, however those hearing the appeal deliberately avoided addressing the fundamentalissue that he was being forced to sign a document with untrue statements in return for access to essential work related equipment which would have also reduced his personal risk during the COVID-19 pandemic.

It is submitted that there is no dispute as set out in the employee’s complaint to the WRC.

His complaint as submitted on the 6th of August 2020 contains matters that are now moot and no longer in dispute. He received a final Stage 3 decision on the 22nd December 2020 and received his mobile device without any necessity to sign the Code of Ethics. In addition to an explanation for the delay between Stages 2 and 3, he also received a full acknowledgement and apology under Stage 4 of the grievance procedures  from the Head of Industrial Relations on the 5th October 2021 in regard to delay.

While it has been accepted that there was delay in progressing through the stages of the procedure, particularly from Stage 2 to Stage 3, a decision at Stage 2 was received within the 21 day timeline, the decision having been issued on the 29th May 2020,  the employee having been contacted on the 13th of May 2020 to initiate Stage 2.

The Stage 3 decision was received on the 6th of November 2020 and a decision issued on the 22nd December 2020. It should be noted that the main delay was between Stage 2 and Stage 3. It has been accepted by management that a delay of 5 months between stages was not acceptable and the employee subsequently received an explanation in the decision letter and an apology from the Head of Industrial Relations subsequently.

It should be noted however, that there is no timeline provided for within the procedure in regard to progressing matters/appealing matters to the next stage, this also applies to when an appeal is received. The 21 day time limit only refers to the investigation of a complaint and the issuing of a decision at each stage and not the time between stages.

In any case, the employee received a written and reasoned decision at Stage 3 of the procedure in his favour dated 22nd of December 2020. The decision accepted that there had been delay in progressing his complaint and an explanation was provided, it was agreed that he should have his mobile device returned to him ‘with immediate effect’.  In addition, it was fully acknowledged and agreed that the device procedure document, the ICT Usage Procedure document nor the training materials contained any requirement to sign the Code of Ethics prior to receiving the device. In this regard, the employee’s complaint was dealt with at Stage 3 and the decision was in his favour, resulting in the immediate return of his device and acknowledging that he was not required to sign the Code of Ethics.

The employee in his complaint to the WRC states that management ‘has refused to engage in the process past Stage 2.’ Therefore this is now a moot complaint also as matters have been progressed past Stage 2 and he received a Stage 3 decision in his favour on the 22nd December 2020, some 13 months ago. It is contended that there is legal precedent that moot matters cannot be dealt with by the courts as the decision would not have any effect on the parties now.

The employee has been issued with the reasons why the employer cannot deal with his complaint in regard to the wording of the Code of Ethics and he was advised to raise his concerns with the Regulatory Authority who is the Policyholder not the employer. This was also advised to him again in the course of three separate meetings held under Stage 4, pre-adjudication on the 2nd of September, 6th October and 9th of December 2021.  The queries he raised with the Ethics Bureau were responded to on 3rd October 2021.

It is submitted therefore that should the employee have an issue with the Code of Ethics as set out in his submissions to the WRC, this is a matter that would need to be addressed by the Regulatory Authority and not the employer. The dispute is therefore more properly with the Regulatory Authority and not the employer. Therefore it is submitted that this matter cannot be adjudicated on since the employer is not the correct respondent in regard to the Code of Ethics.

This dispute was referred to the WRC on 6th August 2020.  At that point the employee’s dispute / grievance with the employer appears to have been stalled.  It was concluded internally on 22nd December 2020 and the decision was in favour of the employee.  So the issue could be said to be ‘moot’.  However, during the course of the hearing, the employee submitted that the issues are not ‘moot’ and he has grievances which he still holds in relation to the handling of the matter and the issue of the code of ethics.   The issues still in dispute from his point of view are as follows:

1.The withdrawal of the mobile device without valid reason.

2. The delay in processing his dispute through the disputes resolution procedure.

3. The issue of the code of ethics and his difficulties with the wording of elements of that code.

In relation to No. 1, I note that by the time the employee had his dispute heard by the WRC, his complaint was ultimately upheld by a senior officer and it was acknowledged and accepted that there was no requirement to sign the code of ethics in order to receive the mobile device.  This was categorically stated and the officers who took the action and upheld it were copied on the communication.

In relation to No. 2, as well as an acknowledgement in the letter upholding his complaint, the employee received a full acknowledgement and apology for the delay from the Head of Industrial Relations on the 5th October 2021.

In relation to No. 3, the matter of the employee’s issues with the wording of the Code of Ethics appears to have been taken up by him with the Ethics Bureau and  were responded to on 3rd October 2021.

I find that the situation as pertained in the employee’s referral have been dealt with insofar as the employer could have dealt with to conclusion and I make no further recommendation on the matter.