Employee

Employer

Anonymised Parties

Water and Sewage Caretaker

A County Council

Representatives

Gerard Kennedy SIPTU

 Eamonn Hunt LGMA

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-00041843-001

07/01/2021

The Employee ledged a grievance with the Employer and maintained the Employer refused to process the grievance.

The dispute related to the refusal of the Employer to process a grievance.

The Employee is employed for 20 years and has an exemplary record. He reports to the Executive Engineer Water Services.

In June 2020 the Employee was arrested/interviewed by the Garda and required to answer questions in custody over 22 hours relating to assertions by the Executive Engineer Water Services that he had been involved in making a threatening phone call to him and was involved in an act of arson in respect of another colleague’s property.  The Employee has no idea why the Executive Engineer Water Services made these complaints as they are groundless and without foundation.

The Employee submitted a grievance on 7/10/2020 to the Senior Executive Officer regarding the Executive Engineer Water Services and the effect of his actions on his work-related stress levels and working environment /relationship.  The Employee did not receive a response to his grievance.  SIPTU wrote to the Employer on 20/10/2020 seeking a time line for the processing of the grievance and again wrote on 3/11/2020 having received no reply. The email confirmed the Union’s intention to submit the grievance to a Third Party. The Employee subsequently received a reply stating his grievance was not within the Employers Grievance procedure provisions.

The grievance also contained a contention that the Employees entitlement to a stress-free work environment was compromised and the reporting relationship with this Line Manager was irreparably damaged.

The Employer made a conscious decision to not deal with these matters, and they are not trivial, and have chosen to ignore its obligations and have taken no action whatsoever to protect the Employee from the stress caused as he still reports to the Executive Engineer Water Services.

The Employee requested a Recommendation that the Employer process the grievance and pay compensation for the delay.

The complaint per the WRC Complaint Form is stated as; “I am seeking an Adjudication Officer investigation into a dispute with my employer in respect of managements failure to appropriately address a grievance raised under the Employers formal grievances procedures”

The Employee submitted a written grievance to the Employer on the 7th of October 2020.

The Employer responded to the correspondence on the 30th of October 2020. 

The Employer has already addressed the grievance raised and responded to the Employee setting out the basis as to why it could not progress the matter further. 

The complaint is made under section 13 of the Industrial Relations Act 1969 which provides as follows; “Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled” A trade dispute is defined in Under Section 8 of the Industrial Relations (Amendment) Act 2015 as follows a “trade dispute” is defined in s.3 of the Industrial Relations Act 1946 (as amended by s.40 of this Act) as meaning “any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased”. 

The Employer did not accept that the matters raised within Employee grievance falls within the provisions of the Industrial Relations acts 1969 & 1990 or the definition as provided with the 2015 act.

Without prejudice to the above the substantive matters raised by Employee are matters set out in statute specifically section 19 of the Criminal Justice Act 2011 which places a statutory obligation on all individuals to provide information to An Garda Siochana   19.— “(1) A person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in— 

preventing the commission by any other person of a relevant offence, or

securing the apprehension, prosecution or conviction of any other person for a relevant offence and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

 A person guilty of an offence under this section shall be liable—

on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or both.”

Given the seriousness of the sanctions attaching to the non-reporting to an Garda Siochana, the Employer did not accept that this matter could be classified as either a grievance or a trade dispute within the provisions of either its grievance procedure or indeed the Industrial Relations Acts and therefore believe that it acted appropriately in its response to Employee.

The Employer stated it was a matter of fact that An Garda Siochana regularly request members of the public to contact them with regard any information they have in relation to a crime.  For the Employer to accept that this constitutes the basis by which a grievance can be made by one member of staff against another member of staff who is simply meeting such obligations would appear to be perverse. Once the information is provided it becomes thereafter a matter for An Garda Siochana to determine what action if any will be taken.  The member of public who has provided the information has no further role or function in this matter.

The Employers position was that if the Employee believed than an employee of the Employer or indeed any member of the public have acted inappropriately in providing false or misleading information to An Garda Siochana, it is open to him to make a formal complaint to An Garda Siochana. It is an offence under section 12 of the Criminal Law Act, 1976 to knowingly make ‘a false report or statement tending to show that an offence has been committed’. 

If the Employee believes that any member of An Garda Siochana behaved inappropriately having received such information from the employee, it is open to him to make a complaint to Garda Services Ombudsman Commission.

The issue of what constitutes a dispute for the purposes of the 2015 act must receive a fairly strict interpretation. The dispute must be connected with the employment or nonemployment or the terms of the employment or with the conditions of employment of any person. The Employer sought the Adjudicator dismiss the case as it believed that there is no bona fide dispute under the Industrial Relations Acts

The background to this dispute is that the Employee states he was arrested/interviewed by the Garda for 22 Hours in June 2020 arising out of an advisory to the Garda that he may have been involved in a threating phone call and arson to another employee’s private property. It was not confirmed at the Hearing that it was the Line Supervisor that made the advisory to the Garda.  The Employee stated that the Garda told him that they were acting on an “advisory”.

The Employee was released without charge and he could not confirm if there was an ongoing Garda investigation or if the matter was closed. He did confirm he had not made a complaint against his Supervisor for false allegations under the Criminal Justice Act to either the Garda or the Garda Ombudsman. In a way this is immaterial to the dispute before me as I have no jurisdiction, and it was accepted by both Parties that I didn’t have jurisdiction, to become involved in those events outside of work.

What is in dispute between the Parties is whether there was a legitimate grievance to be investigated by the Employer. The Employers view was that the correct way to pursue any grievance was through the Criminal Justice Act 2011. This is correct for the issue pertaining to the events surrounding the arrest of the Employee and was a matter solely for the Employee whether he choose to do that or not. The Employee accepted at the Hearing, as a result of questioning by the Employer, that he did not know if the investigation into him was ongoing or not.

Understandably the Employer does not want to get involved in a civil matter between allegations between two employees concerning arson and a threating phone call. However, the second part of the employee’s grievance related to” his work-related stress levels and working environment /relationship” with his Supervisor. The Employer has not chosen to investigate this element of the grievance also.  The Employee stated he has difficulty in the work environment with his Supervisor arising from his alleged involvement in reporting the Employee to the Garda, an allegation which has not been confirmed by any evidence.

It is important to note that I am separating the analysis of two issues in this Recommendation. The events of June 2020 have nothing to do with the Employer and fail outside the Adjudicators scope of jurisdiction. However, the second issue where the employee work environment is allegedly affected as a result is a matter may be covered by the Industrial Relations Act 1946 in that it is “a dispute or difference between workers and workers connected with the employment or with the conditions of employment”. I accept that I am giving the wording “conditions of employment” broad scope here (as it is not defied in the Act) and as a result the grievance could be classified as a trade dispute and the Employer would have the responsibility to investigate that specific matter, and only that matter, to  ensure an ongoing stress-free environment for the Employee at work.

An Adjudication Officer has to thread very carefully when Civil matters are brought into a Trade Dispute. The Employee has requested the Adjudication Officer to recommend an investigation and award compensation arising from his grievance and as stated above I do consider a work-related stress allegation could fit into a Trade Dispute as it relates to conditions of employment, in its broadest sense. However, the Employee is making serious allegations against a colleague relating to matters outside of work which he did not substantiate at the Hearing or in his submission with any evidence.  In the absence of this evidence it is inappropriate for the Adjudication Officer to assume the allegations are correct and therefore from an IR consequence perspective, has an influence on the work environment and condition of employment of the Employee, as alleged. In addition, and critically, no evidence of stress in the workplace was provided by the Employee. Therefore, in the absence of any of this evidence, I find in favour of the Employer and have no further action to recommend in favour of the Employee.

Trade Dispute