ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00039245

Parties:

Complaints/Disputes:

Date of Adjudication Hearing:  08/03/2023 & 03/05/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with13 of the Industrial Relations Acts 1969following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes.

Background:

The worker submitted 9 points of dispute with the employer.  Six received on 30 May 2022 refer to  disputes he has with the employer concerning an investigation, which was later referred to by an external Investigator as an ‘impugned investigation’,  two received on 5 September 2022 refer to his dispute in relation to a new management structure and one received on 5 September 2022 refers to his dispute with the employer in relation to his salary.

Summary of Worker’s Case:

The worker and a colleague, members of the employment’s pension scheme committee, raised a grievance concerning the circumstances in which they were the subject of an investigation arising from a complaint of bullying and harassment and threatening blackmail from an employee of the group company.  The subsequent appeal against the findings of the investigation by the worker and his colleague was allowed.   The grievance raised subsequent to the appeal outcome was then investigated by an external investigator Mr D, whose report was issued on 15 March 2021.

The narrative in the referral forms submitted and received on 30 May 2022 is summarised under each reference :

CA-00050918-001

The worker states that this refers to a refusal by the employer to meet with him and his colleague when requested to do so by his then SIPTU full-time official in December 2019, which he contends was a clear breach of his employment rights.

CA-00050918-002

This refers to a failure of the employer to intervene and/or respond to his correspondence querying an impugned process in 2019 and 2020, which he states is a clear breach of his employment rights.

CA-00050918-003

This refers to correspondence sent by the employer’s CEO dated 22 November 2019 threatening the worker with disciplinary action and threatening his employment, which he contends had no legal basis and was a breach of his employment rights.

CA-00050918-004

This refers to correspondence from the employer’s agent in relation to an impugned process in late 2019/early 2020 which referenced disciplinary action and was inappropriate and stressful to the worker.  He states this communication was in breach of his employment rights.

CA-00050918-005

This refers to the employer’s active participation in attempting to subject the worker to a process in late 2019 and early 2020, and this was a clear breach of his employment rights.

CA-00050918-006

This refers to the worker’s contention that, pursuant to S.I. 146/2000 – Industrial Relations Act 1990, he has a right to have his grievance handled in accordance with the principles of natural justice and fairness. In that regard he contends that he has a right to have those responsible for his multiple employment breaches, and the intimidation, harassment and considerable anxiety that he suffered at the hands of his employer (as accepted by his employer following a formal investigation into an impugned process in late 2019 that his employer attempted to subject him to), held accountable for their actions.

The narrative in the referral forms submitted and received on 5 September 2022 is summarised as follows:

CA-00052592-001

This refers to a refusal by a Director of the employer to confirm whether or not it is the employer’s contention that it is a condition of his contract of employment that he is required to apply for certain staff vacancies, either established or new, when advertised.  On 5 May 2022, he was effectively informed by the employer that consequent on a new management structure, his role which he has performed successfully for the last 15 years was being done away with and would be superseded by two new roles (Customer and Service roles) and that he would have to apply for at least one of these new roles. He has requested confirmation on five separate occasions but has not received an answer to this reasonable question.

CA-00052592-002

On 9 May 2022, the Director informed the worker that there was no collective agreement in place within the employment that covers managerial grade staff who sit outside the collective bargaining agreement.  The worker requested to be furnished with the employer’s documentation in respect of ‘managerial grade staff’ and was informed that such a document did not exist.  As the employer is relying on the ‘bargaining limit’ but cannot provide and documentation to support the company’s stance in relation to the implementation of the new management structure he is in dispute with the company in relation to this matter.

CA-00052592-003

This dispute is in relation to previous commitments made to the worker in relation to his salary level in 2007 when he took up his role.  He accepted the role on the basis of the commitment made by then General Manager which was subsequently not honoured by the employer.  It also relates to a failure by the employer in November 2011 to implement re-evaluated pay rates for the grade.  This should be viewed in the context of the above two referrals, and also in relation to the employer’s proposed new management structure and his role and pay rate within the new management structure.

In response to the employer’s submission, the worker stated that he does not accept that the employer can reasonably claim to have accepted in full Mr D’s report and implemented his recommendations in consideration of everything that has happened since 15th March 2021.                       He has neither accepted nor rejected Mr D’s report.

Summary of Employer’s Case:

The employee’s grievance pertaining to what he characterises as ‘6 employment rights breaches’  has been investigated by an external investigator Mr D.  He upheld many of the Worker’s grievances.  He held that

Three grievances were well founded

Two did not form appropriate subject matter for a workplace grievance

One was not well founded and

One was addressed in the recommendations

The employer has accepted Mr D’s report in full and has implemented that report by again acknowledging that the employee is respected and highly regarded member of operations management.  The acceptance and acknowledgement are set out in an email from the employer CEO to the employee dated 27 April 2021 which stated:

“As you know, the company has accepted the findings of this investigation and I write with specific reference to the recommendations of Mr D.

In the first instance, as stated in the company’s submission to the grievance investigation, I am happy to reiterate that you are both respected and highly regarded members of the operations management team, are of considerable experience, and you would both be considered viable candidates for numerous promotional positions should they become available.

The report also recommends:

“Acceptance of the conclusions set out in this report should be regarded as an acknowledgement by the respondent that the complainants were subjected to unfair treatment, by reason of the matters addressed herein, which caused them considerable anxiety and distress and by any objective standard of fair employment practice that should not have occurred.

On behalf of [the employer], as we accept the report, we acknowledge this finding.”

The investigator Mr D embarked on a full and fair process and upheld many of the employee’s complaints.  While the employee is fulsome in his praise of Mr D, he nonetheless does not accept that report, save insofar as it found in his favour.

It is submitted that Mr D was correct in his conclusions which he reached – and the employer has accepted his report in full – even insofar as it found against the employer (unlike the employee).

The complaints under consideration appear to be a re-statement of the complaints upheld by Mr D, with the exception of complaint no. 6, which is not understood. 

Complaint no. 1 was upheld by Mr D at par. 9.21 and 9.23 and 9.24.

Complaint no. 2 was upheld at para. 9.21, 9.23 and 9.24.

Complaints no. 3, 4 and 5 were upheld at para. 9.26 and 9.27.

The employer requests the Adjudication Officer to recommend that the employee accepts Mr D’s report in full.

Findings and Conclusions:

There are as stated, nine disputes to be considered here.  Six relate to an ‘impugned investigation’ and reference a report (the D report) which the worker maintains has not been accepted by the employer and the employer states has been accepted by it in full.  Two disputes relate to a restructuring in which the worker’s role was to be changed.  One relates to a salary dispute.

The six disputes contained in reference numbers CA-00050918-001 to CA-00050918-006 have been dealt with in the investigation report by Mr D (the D report) and were also dealt with, albeit without conclusion by the WRC Conciliation service.  The D report concluded that the complainant and his colleague “were treated unfairly by their employer”, and that an unfair and unauthorised investigation was initiated in which the complainants could have been placed on hazard of findings of serious wrongdoing, with profound consequences for their good name, standing and future employment.   They were subjected to unreasonable and unjustified pressure to participate in that investigation in circumstances which have been found to constitute intimidation and harassment.”                                                                   The report then concluded:                                                                                                                                                 “Acceptance of the conclusions set out in this report should be regarded as an acknowledgement by the respondent that the complainants were subjected to unfair treatment in employment, by reason of the matters addressed herein, which caused them considerable anxiety and distress and by any objective standard of fair employment practice that should not have occurred.”                                                       The worker stated in one of his submissions that when Mr D emailed his final report to the parties, he stated “I hope that this final report will help to bring closure to this unfortunate episode”.   

The employer has stated on a number of occasions, including during the hearing, that it accepts the D report.  The worker, for his part has stated that he neither accepts nor rejects it.   In the referral of his dispute and in his submissions, the worker clearly wants to revisit all of the issues already dealt with in the D report.  This is an unsatisfactory situation, in that as long as it remains the case that he wants to revisit all of the issues dealt with in the report and as long as he refuses to accept or reject the report, no closure will be brought to the matters raised and found in the D report.  Having considered the situation, I can find no purpose or reason to revisit the D report and the matters having been dealt with comprehensively by it, I recommend that the worker accepts the D report to bring this long standing matter to a close.

In relation to the two disputes contained in CA-00052592-001 and CA-00052952-002, as the worker has referred a separate dispute in relation to this, it is a subject of another recommendation and I make no additional recommendation in respect of these disputes.

In relation to CA-00052592-003, the dispute is in relation to the worker’s salary level and allegations of failure by the employer in 2011 to implement re-evaluated pay rates for the grade.   The worker has not provided detail on this claim, does not appear to have gone through procedures internally and further, this matter could be said to involve not just the worker, but a body of workers.  For those reasons, I am not in a position to make a recommendation on this dispute.

Recommendation:

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

CA-00050918-001, CA-00050918-002, CA-00050918-003, CA-00050918-004, CA-00050918-005,         CA-00050918-006

I recommend that the worker accepts the D report to bring this long-standing matter to a close.

CA-00052592-001 and CA-00052952-002

These are subject of another recommendation, and I make no additional recommendation in respect of these disputes.

CA-00052592-003

I am not in a position to make a recommendation on this dispute.

Dated:   01-August-2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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