Worker

Employer

Anonymised Parties

A Medical Consultant

A CMN2

Representatives

  Self

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000752

12/10/2022

The worker’s dispute concerns comments which were made by another worker (“Ms X”) about him during a dignity at work investigation at his place of employment. Ms X contacted the Workplace Relations Commission (WRC) in advance of the hearing to advise that she would not be attending the hearing as she was not the worker’s employer and she no longer worked for the hospital.

The worker outlined that Ms X was a work colleague who had been called as a witness in a dignity at work investigation at his place of employment. The worker added that Ms X should not have been called as a witness as it was outside the terms of reference for that investigation. Further, Ms X’s witness statement contained misrepresentations and defamatory comments about the worker. The worker confirmed that he had been afforded an opportunity to appeal the investigation outcome and to raise these matters as part of that appeal. The worker also told the hearing that he had presented a separate dispute to the WRC in relation to the dignity at work investigation process and the appeal outcome. A recommendation was issued by the WRC in relation to that dispute and the hospital (the other party in that dispute) has commenced another investigation.

In relation to this dispute the worker presented a detailed written submission. His desire was that Ms X would acknowledge at the hearing that what she said during the dignity at work investigation was factually incorrect and the worker wanted Ms X to withdraw the comments. Given that Ms X did not attend the hearing, the worker sought a recommendation that Ms X’s comments be declared by the Adjudication Officer to be misrepresentations and defamatory of the worker’s good name.   

Ms X is not the worker’s employer, but a former work colleague. Ms X did not attend the hearing.

In conducting my investigation, I have considered all relevant submissions presented to me.

The worker referred his dispute to the WRC under s 13 of the Industrial Relations Acts 1969 (“the 1969 Act”). The definition of a trade dispute for the purposes of the 1969 Act is that contained in s 3 of the Industrial Relations Act 1946 (“the 1946 Act”), which provides:

“In this Act the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased”.

I can only investigate a dispute which is a “trade dispute” as defined under s 3 of the 1946 Act. The Labour Court (see LCR19642 and LCR19188 for example) outlined that there are two essential components to the definition of a trade dispute under s 3 of the 1946 Act:

(i)               that there be the correct parties to the dispute, and

(ii)              that the dispute concerns the correct subject matter.

Parties to the Dispute

The parties to this dispute are a worker and a worker (now a former work colleague). A ‘worker versus worker’ dispute is not a “trade dispute” within the statutory definition of a trade dispute under s 3 of the 1946 Act.  Rather the dispute must involve employers and workers. The reference to disputes between “workers and workers” within s 3 of the 1946 Act was intended to cover inter-union and demarcation disputes only.  The definition of a trade dispute under the 1946 Act was taken from section 5(3) of the now repealed Trade Disputes Act 1906 (an Act of the Parliament of the United Kingdom). The 1946 Act was introduced to “. . . make further and better provision for promoting harmonious relations between workers and their employers . . .” (extract from the long title of the 1946 Act: emphasis added) and the definition of a trade dispute provided for therein covers “. . . not only the usual case of a dispute over wages or hours of work, but also disputes over many other questions arising between employers and workers and disputes such as ‘demarcation disputes’ arising between workers’ unions” (per Mortished, R.J.P. “The Industrial Relations Act, 1946”, Journal of the Statistical and Social Inquiry Society of Ireland, Vol. XVII, 1947/1948, pp 671-690).

The provision by the legislature for a trade dispute to include “. . . any dispute or difference between . . . workers and workers . . .” within s 3 of the 1946 Act must be viewed as a product of the political, industrial, economic, and social environment prevailing in post-WWII/Emergency Ireland. The decade prior witnessed a considerable growth in the trade union movement which brought with it an escalation in inter-union unrest and demarcation disputes. As the 1946 Act passed through the Dáil, the then Minister for Industry and Commerce, Séan Lemass, noted that one of the three main causes of industrial disputes leading to work stoppages at the time was inter-union and demarcation disputes: describing them as “often the hardest to resolve" (see Dáil Éireann debate – 25 June 1946, Vol. 101 No 17, Industrial Relations Bill 1946 – Second Stage) and that the aim of the 1946 Act was inter alia to reduce the causes of industrial disputes at that time (Séan Lemass, Seanad Éireann debate – 31 July 1946, Vol. 32. No 11). The reference to disputes between “workers and workers” within s 3 of the 1946 Act was intended to cover such inter-union and demarcation disputes only and not ‘worker versus worker’ disputes. In the intervening years the Constitution of the Irish Congress of Trade Unions (ICTU) provided for a mechanism for resolving inter-union and demarcation disputes, and where such disputes came before the Labour Court, the consistent practice of the Court was to recommend that the dispute be referred to ICTU or to other established machinery for the resolution of these disputes (see LCR20955; LCR20929; LCR18400 and LCR18182 for example). The circumstances and the nature of industrial relations are markedly different today compared to the period preceding the passing of the 1946 Act. Inter-union and demarcation disputes have long ceased to be a feature of Irish industrial relations. At s 8 of the Industrial Relations Act 1990, the legislature specifically provided for an alternative definition of a trade dispute which excludes such issues as demarcation disputes between workers.

The dispute before me is not a demarcation dispute, but a ‘worker versus worker’ dispute which, as I have outlined above, is not the type of dispute comprehended by the provision for disputes ‘between workers and workers’ under s 3 of the 1946 Act.

Subject Matter of the Dispute

As noted above, the Labour Court stated that for the purposes of s 3 of the 1946 Act a trade dispute must also concern the correct subject matter. As provided for under s 3 of the 1946 Act “. . . the expression “trade dispute” means any dispute or difference between employers and workers . . . connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment . . . ” (emphasis added). In this dispute the worker is seeking a recommendation that his former colleague’s comments be declared by the Adjudication Officer to be misrepresentations and defamatory of his good name. The subject matter of this dispute does not concern the worker’s terms or conditions of employment with his employer. Therefore I am satisfied that the subject matter of the dispute referred to me for investigation under s 13 of the 1969 Act does not come within the statutory definition of a trade dispute for the purpose of s 3 of the 1946 Act.

Conclusion

For the reasons set out above, I conclude that the matter before me does not constitute a “trade dispute” within the meaning of s 3 of the 1946 Act as the dispute does not concern the correct parties or the correct subject matter. Therefore I do not have jurisdiction to hear this dispute.

I do not have jurisdiction to hear this dispute referred under s 13 of the Industrial Relations Act 1969 as the matter does not satisfy the statutory definition of a trade dispute for the purposes of s 3 of the Industrial Relations Act 1946.

Worker v worker dispute. No jurisdiction.