ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: Adj00029996

Parties:

	Worker	Employer
Anonymised Parties	Accountant	Education Body

Representatives

Joanna Ozdarska SIPTU

Cathy McGrady BL Edel Kennedy Mason Hayes & Curran Solicitors

Dispute(s):

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-000399960	21/09/2020

Workplace Relations Commission Adjudication Officer: Brian Dalton

Date of Hearing: 10/05/2022

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).

Background:

The essence of this dispute concerns allegations that a manager’s role was significantly eroded over time and that his access to the grievance procedure was fundamentally flawed. This view was held because the procedure required him to send his grievance to a section head manager. It is alleged that it is this section head manager who was instrumental in taking away core parts of his role and undermining and abandoning approved governance policies. The worker believed that the maxim audi aleram partem and the right to a fair hearing was breached because of this requirement to refer the matter to that manger. Bias arose from such a requirement. No one can be a judge in their own cause and the flawed procedure was placing him in an invidious and unjust position.

The manager has left the employment of the organisation and retired earlier than he had planned to do so; arising from ongoing and continuing failures by the organisation to progress his complaint. The Human Resources section insisted that he must send his grievance to the section head in the first instance as per the procedure.

The organisation disputed all allegations made against them. The grievance procedure is a nationally agreed policy that applied to it and other similar bodies. It was agreed in consultation with the key stakeholders.

The stage of the grievance that the worker takes issue with can be best described as conciliation and does not constitute adjudication of the complaint. It is based on the best practice that seeks at the earliest possible time for the parties to resolve their differences. It does not require the worker to meet his manager about the grievance. That specifically can be delegated to a full time Union Official as detailed in the procedure. The next step of the process clearly detailed that it was about adjudicating on the complaint in contrast to conciliation. That role could be assigned to the Chief Executive or a delegated officer to deal with the matter.

The grievance procedure also provided for a referral to the relevant external Industrial Relations body if stage 3 was unsuccessful in resolving the dispute.

Preliminary Matter

The employer stated the matter was not properly before the Adjudicator arising from the fact that it was statute barred. The worker had left the employment of the body and was now retired. A retired worker has 6 months to bring their complaint from the date of the dispute. The complainant stated in his complaint form that these matters relate to failure by Human Resources to set aside the procedure based on his view of bias. Section 26(A) of the Industrial Relations Act 1990 states:

26A. (1) Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless —

(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker ’ s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

(b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).

(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.

It was argued that the dispute now being relied upon was not clear and the event that it is based upon is time barred.

On the facts the dispute was referred to the Commission on 21st of September 2020 and as the worker has now retired, Counsel stated that it was statute barred as the disputes are outside of the time period provided by statute.

I determine that the dispute is properly before me as it related to the ongoing alleged failure by the body to properly apply fair procedures to this worker and based upon that alleged continuing failure up to the date of lodging the complaint; the employee stated he was forced to leave his employment by availing of retirement earlier than planned.

Summary of Workers Case:

The worker stated the Human Resources department failed to modify the internal procedure based on perceived bias. That they had previously modified the procedure and that insisting on referring the grievance to the person who was the subject matter of the complaint was inherently flawed and unjust.

Summary of Employer’s Case:

The employer stated that the procedure was generally complied with and only in exceptional circumstances was it deviated from. This was not such a situation. The procedure was not flawed. The stage 2 process is a conciliation stage and is not an adjudication stage. There was no breach of fair procedures.

Conclusions:

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

The procedure states:

In the event of a complaint being made against a Principal/Head of Section, the Grievance Procedure will commence at stage 2 by the submission of the grievance in writing, to the Principal/Head of Centre/Head of Section

This stage 2 meeting shall be attended by the Principal/Head of Centre/Head of Section and the employee/s, and/or the relevant trade union representative/s. The Principal/Head of Centre/Head of Section may be accompanied by a Deputy Principal/senior colleague from the school/centre/office

At this meeting both sides shall seek a mutually acceptable resolution of the grievance…If the matter is not resolved, it will be referred, by the Principal/Head of Centre/Head of Section to a stage 3 meeting.

If the matter has not been resolved at stage 2, the relevant trade union/branch representative should seek a meeting with the Chief Executive on behalf of the aggrieved employee.

If the matter is resolved through a conciliated process, the matter is concluded.

If the grievance is not so resolved, the Chief executive shall adjudicate on the grievance….

The worker was not prejudiced with this procedure as the stage 2 procedure is a conciliation stage of the process. The participation in such a stage did not prejudice him or hinder him from referring the matter to stage 3 where of right it would be adjudicated upon. In those circumstances I cannot find in favour of the worker and his belief that fair procedures were denied to him.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

Dated: 18th May 2022