ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: Adj00030019

Parties:

	Worker	Employer
Anonymised Parties	Manager	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-00039961	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 her access to the grievance procedure was fundamentally flawed. This view was held because the procedure required her to send her grievance to her manager, who in turn it was alleged was instrumental in taking away core parts of her role from her. The worker believed that the maxim audi aleram partem and the right to a fair hearing was breached because of this requirement and the bias that arose from such a requirement. No one can be a judge in their own cause and the flawed procedure was placing her in an invidious and unjust position.

The manager has left the employment of the organisation and retired earlier that she had planned to do so arising from ongoing and continuing failures by the organisation to progress her complaint. The Human Resources section insisted that she must send her grievance to her manager 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 her 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. That role could be assigned by the Chief Executive to 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 not accepted.

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 her complaint form that these matters relate to failure by Human Resources to set aside the procedure based on her view of bias. Section 26(A) of the Industrial Relations Act 1990:

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 the worker retired on or about October 2020, Counsel stated:

In Section 2 of the Respondent’s Original Submission, it is set out that in accordance with Section 26A (1) of the Industrial Relations Acts, the Complainant having retired from her employment with the Respondent, that the relevant timeframe is 22 March 2020 to 21 September 2020. In her most recent submission, the Complainant has failed to identify any mattes that fall within that timeframe (there is reference to an email to Mr redacted of 22 July 2020 and an email to Ms redacted of 1 July 2020 at Appendix 7 but they have not been furnished).

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 failure; the employee stated she was forced to leave her employment by availing of retirement earlier than planned. The event was not singular but ongoing up to lodging the complaint.

Summary of Workers Case:

The worker stated the Human Resources department previously had modified the internal procedure based on perceived bias. She was aware of that fact based on her own direct reports. That should have occurred in this case as well. The process was flawed and prejudiced by insisting that the manager who was the subject of the complaint would dictate how the stage 2 process would be conducted. That is inherently flawed.

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 stage 2 process was a conciliation stage and was not an adjudication. It was about resolving the matter, if possible, to both parties satisfaction. It provided for representation for both parties. No breach of fair procedures occurred. It was not adjudication; it was about conciliation.

Conclusions:

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 her or hinder her 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 her belief that fair procedures were denied to her.

Recommendation:

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

Dated: 31st May 2022