ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00032706
Parties:
| Worker | Employer |
Anonymised Parties | An Electrician | A Processing plant |
Representatives |
| Thomas Ryan Peninsula |
Dispute:
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-00043572-001 | 23/03/2021 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 20/04/2022 and 13/01/2023 and 15/08/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission, the said Director General will then refer such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
A Trade Dispute in this context will include any dispute between an employer and a worker which is connected with the employment or non-employment, or the terms and conditions of or affecting the employment of any person.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and having conducted an investigation into the said trade dispute as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation to the parties to the dispute which will set forth my opinion on the merits of the within dispute.
Where applicable, this investigation may involve an assessment of whether processes have complied with the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).
Under Section 36(1) of the Industrial Relations Act 1990, any party may object to an investigation by an Adjudication Officer of the dispute raised in the complaint form. The Respondent employer must indicate any such objection in writing within 21 days of the notification of the dispute raised in the workplace relations complaint form. If the Employer does not indicate an unwillingness to have this matter dealt with by way of Adjudicator investigation, the Employer will be regarded as having given consent.
If an objection is not received within the required timeframe and in the required format but at a later date it will not be considered valid for the purpose of this Act, and a hearing in relation to the dispute will be assigned.
Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties and on foot of any investigation so conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any and all internal procedures or structures which ought to have been utilised before bringing the dispute to the attention of the WRC.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. However as this was a hearing into an Industrial Relations Dispute this matter was heard other than in public. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an or make an affirmation as may be appropriate. I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Workers Case:
The Complainant herein issued his complaint on the 23rd of March 2021. The Complainant has relied on the narrative set out in the Complaint form and has specifically cited the Bullying and Harassment Procedures as being at issue. The Complainant made an Affirmation in advance of outlining his issues with the Respondent company. |
Summary of Employer’s Case:
The Respondent was represented at this hearing, and I was provided with a submission dated the 15th of December 2022 outlining the Respondent’s position. The Managing Director BF gave evidence on behalf of the Respondent company. |
Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant has worked for the Respondent company for eight or nine years prior to the start of 2021. The Respondent company primary function is in the extraction of sea salt from seawater through a process of filtration and purification. Other nutrients/elements can also be extracted, and I understand that the Respondent has also built up a large stock of Magnesium for future use. The Magnesium is kept on site in liquid form and has a stock value.
The Complainant acted as the Plant Manager and was highly skilled in the area of electrics. BF gave evidence that the Complainant was a highly valued member of the small team and indeed there can be little doubt that the operational burden of running this plant largely fell to the Complainant. The Complainant’s line Manager was co-director who appears to have taken a hands-off approach. BF only sporadically oversaw the day-to-day operations.
The Complainant outlines a difficult working atmosphere where he was left running the plant without much support – financial or otherwise. The Complainant had had a number of cardiac issues which left him vulnerable to stress. As against this, the Employer says that the Complainant was given every support possible.
I note that by the start of 2021 the Complainant says that he was owed a bonus of €9,500.00 and that the Respondent was not agreeing to pay that in one tranche but was instead suggesting having it paid in instalments over the year.
The Complainant never raised any Grievance against his Employer Informally or formally and I note that the Complainant’s salary was increased by €5,000.00 pa at the end of 2020. I therefore accept that whilst this role might have been demanding the Complainant was fully engaged and his Employer was satisfied with performance.
At a management meeting on or about the 4th of February 2021 the end of year stock accounts were being discussed and BF appears to have challenged the Complainant regarding the amount of product (Magnesium) in stock. BF gave evidence that the company had created Magnesium production opportunities in 2020 in the same amount (or more) as in 2019. Despite this, Magnesium stocks were well down. As very little product was sold in the year, BF was estimating that there was a deficit of some €250,000.00 in the stock levels.
It is clear that BF formed the view that the only person who could explain the shortfall was the Complainant herein. BF said in evidence that the Complainant was the person primarily responsible for documenting production and therefore the only person in a position to explain the discrepancy between the amount produced and the amount sitting on shelves in the stockroom. It is hard to understand what the Complainant’s Line Manager was doing in the course of the year if it was not to oversee the Complainant’s performance and double check the production levels. This apparently did not happen.
BF was clearly not satisfied with the possible explanations put forward by the Complainant in the course of this meeting on the 4th of February or later that day as the full extent of the missing stock came to be realised.
The Complainant did not return to the workplace on the 5th of February 2021 citing stress. I note that the Complainant has not returned to the workplace since that time and some two and a half years later continues to be out on sick leave.
Two things happened in the immediate aftermath of the Complainant’s departure (by reason of illness) from the workplace. Firstly, the Respondent notified the Gardai of the disappearance of valuable stock. This happened around about mid-February. Secondly, the Respondent in the person of BF, formulated a letter setting out allegations which it was proposed would be independently investigated.
I can make no observations regarding the Gardai actions or inactions in the interim period other than to note that the Complainant has had to live with the unbearable burden of uncertainty in the intervening period. The Complainant made the case that the Employer’s rush to inform the Gardai without allowing the Complainant time to prepare his own case in an investigation demonstrated mala fides on the part of the Employer. I do not accept this, as the primary concern must be to track down missing product – a job better suited to the Gardai.
It does not therefore seem hugely surprising therefore that the Complainant has not engaged in the proposed preliminary Investigative process to which he was invited in and around March of 2021.
The Complainant has sought to establish that the Respondent behaviour has amounted to harassment and bullying. I find I cannot agree with this assessment. Any attempt to communicate with the Complainant was reasonable and correct. Such was the Complainant’s input into this operation, that his sudden absence from the workplace meant that the plant quite literally came to a halt as no-one other than he understood how every part of the process operated. The Respondent witness described a hugely chaotic time after the Complainant had left and I accept that he was deeply frustrated by the Complainant’s refusal to answer phone calls and emails that were simply requests for help. The communications were not inappropriate and did not amount to bullying or harassment. The Complainant refused to engage with his Employer on medical grounds which is his prerogative.
What is clear is that BF blames the Complainant for the disappearance of stock. The Complainant is adamant that he has done nothing wrong. The Complainant appears to have formed the view that he will not be able to adequately defend himself. He says he cannot afford legal representation despite being told he could have such representation at the investigation.
The parties have therefore reached a state of stalemate. The Complainant cannot return to the workplace without first submitting himself for an investigation into missing stock. The Complainant’s understanding that I, as Adjudicator, could conduct an Investigation was misconceived as there is an expectation that the parties would exhaust the procedures available in the workplace before presenting before the Adjudication facility. The Complainant must therefore engage in the Investigation as proposed by the Employer.
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
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Recommendation:
Having already articulated my opinion on the merits of the within dispute I am recommending that, as soon as his health allows, the Complainant should engage in the Workplace Investigation that the Employer has deemed necessary in the circumstances.
To give the Complainant comfort that the outcome is not pre-determined, I am recommending that the Investigation be conducted by an entirely independent party. I would suggest that the Respondent provide the Complainant with three names of clearly independent individuals for this purpose. The Complainant can select one from amongst them. The burden of paying for this investigation rests with the Respondent. The Complainant will be entitled to be represented (legally or otherwise) and will bear his own expense in this regard.
As I understand it, the Complainant has been out on unpaid sick leave since February 2021. For reasons unexplained the Employer had agreed to pay the Complainant his 2020 commission/bonus of circa €9,500.00 over the course of 2021. This is remuneration already earned and should have been paid per the agreement. I am recommending this money be paid in four equal instalments over the next four months.
Dated: 31st August 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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