Worker

Employer

Anonymised Parties

Theatre Operative

Health Service

Representatives

Ms. ÁIne Feeney, SIPTU

No Appearance

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 - 00000932

09/12/2022

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

IR - SC - 00000933

09/12/2022

The Worker is engaged as a theatre operative by the Respondent. On 9th December 2022, the Worker referred two disputes within the meaning of the Industrial Relations Acts to the Commission.

Herein, he alleged that an internal grievance process invoked by him was subject to an excessive delay. He further submitted that he was subjected to a fundamentally unfair disciplinary process. No rebutting submission was received from the Employer in this regard.

In circumstances whereby the Employer positively elected to engage with the dispute, the matter proceeded for hearing on 26th May 2023. There was no appearance by or on behalf of the Employer at this hearing. In circumstances whereby I am satisfied that the Employer was aware of the time, date and venue of the hearing, the matter proceeded in their absence.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker is engaged as a “theatre operative” within the Employer organisation. The Worker is a long-standing employee, having held this role since 2007.

On 12th April 2021, the Worker revied correspondence alleging that he had not carried out his contractual duties. As the subject matter of this correspondence was the subject of an ongoing industrial dispute, the Worker raised a grievance in accordance with the Employer’s internal policies. A meeting was arranged on foot of the same for 19th April 2021. On 17th November 2021, the Worker’s representative corresponded with the Employer seeking an outcome in respect of the process. On that date, the representative was informed that an outcome had issued almost two months earlier, and belatedly issued a copy to the Complainant. This correspondence confirmed that the Complainant’s grievance was upheld, however no further remedial actions or corrections were put in place on foot of the same.

During this period, the Employer and the trade union of which the Worker was a member came to an interim agreement in relation to the industrial dispute. This agreement stated that, “all grievances that have commenced as part of this issue will be reviewed individually with the parties involved”. The agreement further stated that “no further actions arising from this issue will be taken by management during the review period”. In this regard, the “review period” was confirmed to run from April 2021 to March 2022.

On 20th April 2021, the Worker received correspondence to the effect that he was to be the subject of a grievance raised by a colleague within the service. The submission of the Worker was that the subject matter of this grievance related to the ongoing industrial dispute, and in accordance with the interim agreement, the Employer should not have taken any action on foot of the same. Nonetheless, this grievance progressed and on 23rd December 2021, it was confirmed that the grievance against the Worker was upheld. The Worker sought to appeal this outcome, however he was informed that as the Respondent to a complaint he did not have the right of appeal.

On 7th October 2021, the Worker was informed that a further complaint had been received. Again, this complaint related directly to the subject matter of the industrial dispute and the Worker’s apparent failure to complete contractual duties. On this occasion, he was informed that the same would treated as a disciplinary matter, and would be dealt with under stage 3 of the Employer’s procedures. Following internal correspondence on this matter, the Employer confirmed that the matter would be dealt with under Stage 1 of the policy. Eventually, on 2nd September 2022, the Employer confirmed that no disciplinary sanction would be imposed on foot of the same. Notwithstanding the same, some “protective measures” were imposed by the Employer on foot of this process, including the removal of weekend work and overtime.

By submission, the Worker stated that in consideration of the interim agreement, the Employer did not have authority to progress either the grievance against the Worker or the disciplinary matter. He stated that both of these matters arose due to his apparent refusal to complete tasks that were the subject of an industrial dispute and were not matters relating to his personal conduct. He further submitted that both processes were subject to excessive delays. The Worker further submitted that protective measures that had been put in place following the abandoned disciplinary process be removed. Finally, the Worker’s representative requested that the Employer’s managers received training on the correct application of the disciplinary and grievance procedures.

As stated above, neither the Employer not a representative on their behalf attended the hearing as scheduled. In addition to the same, no submission was received by or on behalf of the Respondent.

In circumstances whereby the Employer was aware of the time, date and venue of the hearing, the matter proceeded in their absence.

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

This individual dispute occurred against a backdrop of a wider industrial action involving the theatre operatives and the Employer. In this regard, it is apparent that a dispute arose in relation to the certain procedures being carried out by these workers. Notwithstanding the same, on 12th April 2021, the Worker was asked to “leave work and remain at home without pay dur to your refusal to carry out the full range of contractual duties”. In circumstances whereby these duties were the subject of a collective dispute, the imposition of an unpaid suspension on this Worker in particular was unfair and oppressive. Unsurprisingly, the Worker raised a grievance in relation to the same, which was subsequently upheld. Notwithstanding the same, it is apparent that the grievance was upheld following a five-month delay, with a further delay of six weeks prior to the Worker being informed of the outcome. I further note that the grievance was deemed to be simply upheld, with no form of correction, apology or remedial action suggested. In this regard, I note that the Employer’s procedures stated that such an outcome should state “the reasons for the decision and what action, if any, is to be taken”. Having regard to the foregoing, it is apparent that the Employer is in breach of their own procedures in this regard.

Following a conciliation procedure, the parties came to an interim agreement in relation to the collective dispute. This agreement stated that, “all grievances that have commenced as part of this issue will be reviewed individually with the parties involved”. The agreement further stated that “no further actions arising from this issue will be taken by management during the review period”. In this regard, the “review period” was confirmed to run from April 2021 to March 2022. Nonetheless, having regard to the uncontested submission of the Worker, he became the respondent to a complaint that related squarely to the subject matter of the dispute. Having regard to the interim agreement, it is apparent that the internal processing of this complaint constitutes a “further action” in contravention of the same. Having reviewed the correspondence in this regard, I see no attempt by the Employer to identify the matters raised within the grievance that relate to the collective dispute and those that relate to the Worker individually. I further note that the outcome of the grievance procedure allows for an appeal by “either party”. When the Worker sought to engage with this appeal he was then informed did not enjoy such a right.

Thereafter, a further complaint was made regarding the Worker’s apparent refusal to complete the duties that were the subject of the collective dispute. On this occasion, the Employer opted to treat this as a disciplinary matter. While the disciplinary allegation was not upheld, it is apparent that this again represents a further action by management in contravention of the interim agreement. Again, there appears to be no attempt to identify those matters that relate to the ongoing collective action and those that relate to an allegation of individual misconduct on the Complainant’s part. It is further apparent that this process was, again, the subject of an excessive delay. Finally, it is apparent that certain “protective measures” were enacted in respect of the Worker’s shift pattern. In circumstances whereby the no finding was made on foot of the disciplinary process, there is no basis for such protective measures.

Having regard to the foregoing, I recommend in favour of the Worker. In circumstances whereby the collective action has finalised and no outstanding disciplinary or grievance matters remain in existence, I find that compensation is the most appropriate form of remedy. In this regard, I recommend that the Employer pay the Worker the sum of €8,000 in settlement of this dispute.

In addition to the foregoing, I recommend that the protective measure put in place following the abandoned disciplinary procedure should be removed.

Finally, the Worker’s representative has requested that the relevant managers receive training in the correct application of the grievance and disciplinary procedures. In this regard, I recommend that all relevant training records for such managers be examined to ensure the same is compliant with the Employer’s internal standards.

Collective Action, Disciplinary, Grievance