ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00046145
| Worker | Employer |
Anonymised Parties | Electrician | Construction and Industrial Recruitment Agency |
Representatives |
| HR, Safety and Compliance Manager |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Adjudication sought on a workplace dispute raised under section 13 of the Industrial Relations Act, 1969 | CA- 00056998-001 | 06/06/2023 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 28/09/2023
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 any matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will also 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 the non-employment, or with the terms and conditions of or affecting the employment of any person.
I have confirmed that the Complainant herein is a Worker within the meaning of the Acts and I have conducted an investigation into the said trade dispute as described in Section 13. It is noted that Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties 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.
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 (SI 146 of 2000).
It is noted that the Complainant herein is alleging that fair procedures were not followed and that he was unfairly dismissed. It is further noted that the complainant has less than one year of service with the Employer. In such circumstances, Section 20(1) of the Industrial Relations Act of 1969 allows the worker to refer the dismissal to the WRC as a dispute under the Industrial Relations Acts.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to 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) I can confirm that the within hearing was conducted in accordance with the administration of Justice. The hearing was not open to the Public in circumstances where a dispute had been brought under the Industrial Relations Acts. I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. To facilitate the Complainant in bringing this complaint an application was made to provide an interpreter, which application was acceded to. The Interpreter was asked to make the appropriate Oath/Affirmation to truly interpret all matters and things required of him to the best of his skill and understanding. It is noted that the Interpreter is provided to facilitate the Adjudicator and the process. |
Summary of Workers Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and gave additional supportive oral evidence in his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent witness. The Complainant alleges that he was Unfairly dismissed in circumstances where he did not have 52 weeks of continuous service. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. I was greatly facilitated by the excellent work of the interpreter herein. The Complainant’s case is set out in his workplace relations complaint form dated the 6th of June 2023. |
Summary of Employer’s Case:
The Respondent entity was represented by the HR Manager. This said individual outlined the Respondent’s position and gave an account of the history of the relationship between the parties. The evidence was provided on Affirmation. The Respondent was questioned by the Complainant. The Respondent rejects that there has been a Dismissal and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Conclusions:
I have carefully listened to the evidence adduced in this matter. The Complainant gave evidence that his Employer questioned the legitimacy of medical certificates he was submitting in the period prior to the Christmas of 2022. The Complainant had pushed back on this line of questioning from his Employer, and the Employer appeared to back down.
The Complainant was absent for four weeks in total and the Complainant explained that he had had a flare up of an old back injury.
There can be no doubt that the Complainant gave an assurance to his Employer that he would provide a fitness to return to work certificate or report once he had the green light from his doctor. He advised in early January 2023 that he would provide the medical cert as soon as it came to hand. His Employer signalled that once this was furnished the company was poised to react and find him a position.
For reasons unexplained the complainant never provided the confirmation that he was fit to return to the workplace. It was evident to me that he was still annoyed that those questions had been raised concerning the legitimacy of his medical condition back in the previous December.
The relationship is one of agency placement. The Complainant is a skilled electrician, and I am satisfied that his specialised skill and know-how has been very much in demand both now, and at the start of the year. I accept the proposition that there would have been no difficulty in immediately placing the Complainant had he indicated a willingness and fitness to return to the workplace.
Inexplicably the Complainant never indicated a willingness to return to work for the Employer Agency and instead went looking for work himself and he did find alternative work in due course. It is noted that the Complainant had taken a trip to Poland to see family over the period of time that he was out on certified sick leave. He returned to Ireland and found alternative employment.
I am satisfied that the last pay confirmation received by the Complainant on the 23rd of December 2022 was not a notification of termination of employment nor was it ever intended to be. it happened to be the last pay period of the year and also happened to have some reconciliation figures included therein – Bank Holiday pay etc. This, I accept, is normal for the end of year.
The Complainant was never terminated or otherwise let go. He never confirmed that he was leaving. For the Respondent, the expectation was that the complainant would return to work if and when a certificate of fitness to return to work was provided.
The Employer witness gave evidence to the effect that at any given time he would have up to 1000 skilled workers on the books of which 600 or 700 might be in gainful employment. The Respondent did not accept that the complainant could have believed himself to have been fired. As I understand it, the Complainant’s name is still on the Respondent books as no termination has been proffered by either party.
I am finding that the Complainant’s assertion that he has been Unfairly Dismissed is misguided and incorrect and, in the circumstances, I am making no recommendation. |
Recommendation:
Having already articulated my opinion on the merits of the within dispute, I am making no recommendation. The Complainant failed to return to the workplace when he was fit to do so. The Complainant instead found alternative employment. He cannot retrospectively attribute a Dismissal on the part of the Employer.
Dated: 04/12/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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