ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: ADJ-00034790

Parties:

	Worker	Employer
Anonymised Parties	A Carer	A Manager

Representatives

Jan Harte & Associates

A Manager

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-00046129-001	12/09/2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Date of Hearing: 19/9/2022

Procedure:

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

Background:

The Employee alleged that had a trade dispute concerning a verbal reference given by her former employer to a potential employer which resulted in the termination of her employment with the new employer. The Employee was seeking an apology and recognition from the Employer that they had given this reference which the Employer denied ever giving. The Employer raised a preliminary issue concerning the Adjudicators jurisdiction being statue barred as the dispute was referred to the WRC beyond twelve months after the Employee ceased employment with the Employer. This Recommendation deals with the preliminary issue first and only if jurisdiction is accepted by the Adjudicator is the substantive issue at dispute dealt with then.

Summary of Workers Case:

The Worker was employed as a Carer from January 1st 2020 to July 10th 2020.

The Worker submitted her dispute to the WRC on September 12th 2021.

The Worker alleged her employment was terminated without reason but did not pursue this issue at the Hearing. Her main dispute was that her Employer gave a verbal refence to an Employer she had got work with and was employed by which resulted in the termination of that new employment.

The Worker got sight of the new Employers reference document on July 30th 2021 through GDPR which stated they had received a verbal reference which was negative and they then terminated the Workers employment.

The Worker stated that she only worked for the Employer as the person she was caring for was a friend of her father.

The Worker stated that reasonable cause existed to extend jurisdiction of her dispute in the event it was subject to statute time limits.

The Worker stated she had suffered as a result of an unfounded negative reference, the Employer had not followed fair procedures, had no grounds for the reference given or the termination of her employment and she was seeking an apology for the issue.

Summary of Employer’s Case:

The Employer case is that the dispute was state barred as it was submitted after 12 months from the date of termination of the Employee employment with the Employer.

The two Employees who were alleged to have given the verbal reference denied at the Hearing that they gave anything other than the dates of employment and job title to the other Employer, as per Company written policy.

The Employer stated that the Worker became aware of the alleged verbal refence on March 12th 2021 and her dispute was statue barred on that ground also.

The Employer stated that the Worker resigned and was not dismissed.

The Employer stated they could not give evidence of a reference that did not exist.

Conclusions:

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

The Facts;

The Employees employment commenced on January 1st 2020 ended on July 10th 2010.

The alleged verbal reference to the new Employer was given on March 2nd 2021.

The Employees employment with the new Employer ended on March 28th 2021.

The Employee received sight of the written notes of the new employer regarding the alleged negative verbal reference on July 30th 2021.

The Dispute was referred to the WRC on September 12th 2021.

Decision on Jurisdiction

The 1990 Industrial Relations Act defines a trade dispute as follows; “trade dispute” means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”. This broad definition allows for the inclusion of this dispute as a dispute for adjudication by the WRC.

It is important to note the difference between complaints and disputes. Complaints generally relate to legislation affecting employment or personal rights. Disputes relates to industrial relations trade disputes and certain Acts specified in Section 41.7 of the Act i.e. Carers Leave Act, National Minimum Wage Act 200and Parental Leave Act 1998. In general, complaints can be submitted within six months of the contravention and within twelve months if reasonable cause exists for the delay.

Dealing with the preliminary issue first regarding if the dispute is statue barred. Section 3 of the 1969 Industrial Relations Act which relates to the referral of disputes to Rights Commissioners (now Adjudicators) states the following”

“3.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) 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—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

(4) A rights commissioner shall hold office for such period as the Minister may determine and shall be paid such fees and expenses as the Minister, with the consent of the Minister for Finance, may determine from time to time and shall hold office upon and subject to such other terms and conditions as the Minister may determine from time to time.

(5) (a) A rights commissioner may be removed from office by the Minister for stated reasons.

(b) Neither the Civil Service Commissioners Act, 1956 , nor the Civil Service Regulation Acts, 1956 and 1958 , shall apply to the office of rights commissioner.

(6) A rights commissioner may provide for the regulation of proceedings before him in relation to an investigation under this section and may provide for the cases in which persons may appear before him by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before him.

(7) The Minister, if he so thinks fit, may appoint more than one rights commissioner at the same time or appoint a rights commissioner at a time when one or more than one rights commissioner stands or stand appointed.

(8) An investigation by a rights commissioner shall be conducted in private.

(9) (a) A party to a dispute in relation to which a rights commissioner has made a recommendation may appeal to the Court against the recommendation and the parties to the dispute shall be bound by the decision of the Court on the appeal.

(b) The Court shall hear and decide any appeal to it under this subsection and it shall convey its decision thereon to the parties.

(10) The Court shall not investigate (except by way of appeal to it under subsection (9) of this section) a trade dispute in relation to which a rights commissioner has made a recommendation”

There is no timeframe set out in the 1969 Act for the submission of disputes under the Industrial Relations Acts so therefore the dispute is not statute barred under that Act.

The relevant sections of Section 41 of the 2015 Workplace Relations Act (the other relevant Act) states the following;

“41. (2) An employee or an employer (in this Act also referred to as a “complainant”) or, where the complainant so consents, a specified person, may refer a dispute as to the entitlements of the employee under an enactment specified in Part 3 of Schedule 5 to the Director General, and, where a dispute is so referred, the Director General shall, subject to section 39 , refer the dispute for adjudication by an adjudication officer.”

(4) The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of section 42 by the Labour Court.

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

7) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—

(a) in the case of a dispute relating to the entitlement of an adopting parent under the Act of 1995, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the day of placement (within the meaning of that Act) or, in circumstances where no placement takes place, the date on which the employer receives the first notification of the adopting parent’s intention to take leave under that Act (whether adoptive leave or additional adoptive leave, within the meaning of that Act), or

(ii) in the case of an adopting father, the date on which the adopting mother died,

(b) in the case of a dispute relating to the entitlement of an employee under the Carer’s Leave Act 2001 , it has been referred to the Director General after the expiration of the period of 6 months beginning on the date of the contravention concerned,

(c) in the case of a dispute relating to the entitlement of an employee under the Act of 1994, it has been referred to the Director General after the expiration of the period of 6 months beginning on the date on which the employer is informed—

(i) that the employee is pregnant, has recently given birth or is breastfeeding,

(ii) in the case of an employee who is the expectant father of a child, that the expectant mother of the child is pregnant, or

(iii) in the case of an employee who is the father of a child who has been born, that the child’s mother has died,

(d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act 2000 , it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,

(ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section, or

(iii) in the case of a dispute to which section 25 of that Act applies, the date on which the employee’s hours of work were reduced or alleged to have been reduced,

And

(e) in the case of a dispute relating to the entitlement of an employee under the Parental Leave Act 1998 , it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the dispute.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

9) (a) A complaint to which this section applies shall be presented to the Director General under subsection (1) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(b) A dispute to which this section applies shall be referred to the Director General under subsection (2) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(c) The Director General shall cause a copy of the notice under paragraph (a) or (b) to be given to the other party to the complaint or dispute concerned.

(10) An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings under this section or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate.” End of relevant Act.

Section 41.6 sets out timeframes for complaints and allows for extension of time in certain aspects for a further six months. Section 41.6 does not apply to Industrial Relations disputes as it is a dispute and not a complaint.

Section 41.7 sets out maximum timeframes for disputes under certain Acts and elaborates on the extension of time under specific Acts. There is no mention of an Industrial Relations dispute in Section 41.7. Therefore, the only relevant Section that applies is Section 41.5 of the Act which contains no time limit on submitting industrial relations disputes to the WRC. I find that the dispute is legitimately before me for adjudication and is not statute barred and the Employers preliminary objection is not valid and I find I have jurisdiction to issue a Recommendation on the substantive issue of the dispute.

The dispute

With regard to the substantive issue the Employee claimed she was left go from the Employers employment without valid reasons and proper procedures being followed and that she was not given a fair hearing. The Employer stated she resigned. This issue was not pursued by the Employee and it is not central to the core dispute which relates to the issue of whether the Employers staff, who were present at the Hearing, gave negative verbal feedback on the Employee which resulted/contributed to the termination of the Employees employment with the new Employer.

The new Employer was not at the Hearing and neither party sought their attendance at the Hearing which was permissible under the Act. The facts of the matter are in dispute and difficult to reconcile. Both employees of the Employer, who the Employee alleges gave or heard the negative feedback to the new Employer denied at the Hearing they had given such information to the new Employer. The Employee submitted a document, requested from the new Employer under GDPR, which contained notes of a refence check and stated “Called Referee and was told (the Employee) was not trustworthy. (The Employee) was spoken to by management regarding client complaints and appeared non receptive to feedback. Discussed this reference with (x) and agreed we will not be going forward as a Carer”. The date of this document was March 2nd 2021. The Employee was dismissed by the new Employer on March 28th 2021. So were two conflicting pieces of information before me. In summary, the two pieces of conflicting information do not help solve the issue or reach a conclusive view. They are incompatible pieces of information. A doubt can reasonably be put forward as to why the Employees employment terminated with the new Employer so quickly after the receipt of the alleged reference and why the new Employer would document a conversation that the Employer says never happened.

The Employee worked privately for some time after her employment ended with the Employer and has since taken up a full time role with another Employer.

Recommendation:

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

The parties involved sought to defend their positions vigorously. Some disputes referred to the WRC have a road they travel that seems to have no end in sight due to the different positions of the Parties involved and the lack of possible compromise to resolve the dispute. However, most disputes get resolved at some point. The question is when is that point reached by the Parties. With this observation in mind, I make the following Recommendation;

I recommend that the Employer provide the Employee with the following letter, for use, if ever required, for future applications for employment;

“Private and Confidential.

The (Employee Name) worked for (Employer Name) from January 1st 2020 to July 10th 2020 and was employed as a Carer.

It is the policy of this Employer to provide no further information on any former employees employment details to any prospective employer”.

Given the disparity between the Employee submission regarding the verbal reference she alleges took place and the Employers denial that it too place, I Recommend, in order to bring a conclusion to the dispute that the Employer give a goodwill gesture sum of 2,000 Euros as compensation for the settlement of the dispute. For clarity, this compensation does not imply any admission of legal responsibility or liability on the Employer for the matters which were the subject of this dispute.

I recommend in favour of the Employee.

Dated: 26/09/2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Trade Dispute