ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00031014
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Financial Services employer |
Representatives | Unite the Union | Byrne Wallace Solicitors |
Complaint:
Act | Dispute Reference No. | Date of Receipt |
Industrial Relations Acts, 1969 | CA-41200 | 14/11/2020 |
Date of Adjudication Hearing: 29/11/2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
This dispute arose following the complainant's return to work following a successful legal challenge to his enforced long-term sick-leave by his employer. |
Summary of Complainant’s Case:
The complainant has been employed by the respondent since 2001, and in November 2004 he made a code of ethics complaint, which proceeded as a bullying complaint on the advice of the HR department.
In 2008, he was forced to go on sick leave on foot of the employer’s psychiatrist's report, which certified him unfit for work and he remained on long term sick-leave for three years and only returned to work and restored to the payroll on foot of a successful Court challenge.
During this period the complainant was not paid his salary and received only reduced payments of approximately 40% of his gross salary, resulting in considerable financial hardship.
On foot of the decision of the Court, he was restored to the payroll and arrears of pay were paid to him. Despite this the employer was slow to allow him to return to work after and he was eventually returned in March 2012.
There were attempts to find the complainant alternative employment on a secondment basis, but these came to nothing. Further efforts were made to resolve outstanding matters, culminating in and external dispute resolution process in 2014 conducted by a prominent employment law barrister
The outcome included an offer of compensation (however no clear basis was provided which left matters unclear) and payment of costs.
The complainant believes that this process likely failed because the original 2004 dispute (was not examined and there was a lack of clarity about future working arrangements.
Finally, there was a failure in the of scope in the recommendations offered i.e., a lack of guidance on future work arrangements and problems with the draft agreement clauses proposed by the employer arising from this process, so that the complainant was to be denied employment rights and the proposed clauses included terms contrary to Protected Disclosures Act 2014
The complainant 's experience is that there has been no genuine engagement from HR in these matters which have been ongoing since 2012. He sought the intervention of his MD in September 2020 (having raised it with his predecessor the previous year) but was advised that all internal dispute resolution processes had been exhausted and neither he nor anyone else in the business would engage any further in relation to his grievance, other than through the offices of the WRC.
These earlier contacts resulted in the secondment option being explored, but ultimately came to nothing and the complainant still wishes to pursue this.
This whole experience has had an adverse impact on the complainant personally, on his career and on his family and he is seeking resolution of all of these matters by way of a comprehensive agreement involving a package of measures to include, a promotion, a secondment position to a third party, implementation of the External Report in full - without undermining the complainant's legal rights, and payment of vouched expenses/losses in connection with this employment dispute. |
Summary of Respondent’s Case:
The respondent notes the background to the current case lies in the court proceedings brought by the claimant. After those proceedings the employer appointed a Senior Counsel by agreement with the complainant to address various matters that had arisen between the complainant and his employer.
The SC was appointed in April 2014 and reported in September 2014 (and a copy of his report was submitted). The respondent remains willing to fully implement this report.
In relation to the secondment issue employer did work with the third-party employer to seek to implement this however it did not prove possible to reach an agreement to give effect to it. There are obviously limits beyond which the respondent cannot go in requiring a third-party to agree to a secondment arrangement.
The respondent still wishes to resolve this dispute with the complainant, and it believes it has applied all procedures fairly that there are no issues outstanding other than those which were dealt with in the 2014 SC report which, as noted, it remains prepared to implement
The respondent is concerned that the complainant is seeking to continue a dispute long after the conclusion of litigation and the implementation of court orders. |
Findings and Conclusions:
As will be seen above, the dispute referred for adjudication has quite a history, dating back the best part of twenty years. Despite this, it continues to have a very real resonance for the complainant to this day.
The report of the independent facilitator was published in 2014 but it has not been accepted by the complainant for a number of reasons which are referred to above. The respondent has accepted the report and is willing to implement it.
Referrals under this legislation occasionally allow a process to develop in which the Adjudicator can narrow the areas of dispute between the parties, build a degree of consensus such that any subsequent WRC recommendation has a high probability of being accepted and, as a more important consequence of being implemented.
This is obviously desirable given that the statutory origin of the process under which this complaint is heard is an ‘Industrial Relations’ Act and this underpins the general approach of the WRC and the Labour Court to support resolution at the level of the workplace as the preferred option.
On the other hand it places some restraints on how far an Adjudicator can prudently go in relation to any complainant’s demands.
In a personal statement to the hearing the complainant movingly outlined the impact of the events in the case on himself and on his family. He left little doubt as to how it had impacted on his own promising career and his professional reputation.
It would be impossible not to feel a degree of sympathy with the complainant for what he has been through without taking any view of the merits of either side’s position. But the critical question is how this process of WRC adjudication can provide a remedy and bring closure to the issue for both parties.
The reality is that the central issue giving rise to the problem has been dealt with in the courts at a very high level and is now closed. The respondent has fully implemented the judgement of the court.
To deal with some of the consequences of that there was the independent report which was established with the following Terms of Reference (edited to preserve anonymity). It was conducted by a respected Senior Counsel with extensive experience of employment matters.
1. To establish any financial loss sustained by [the complainant] as a result of his absence from work between 15th May 2008 and 22nd March 2012 and/or arising from the [court] proceedings issued not already determined by the High Court or by agreement between the parties, to which [the complainant] is entitled pursuant to his employment with the [respondent].
2. To determine a form of words to describe [the complainant’s] absence from work for the period from 15th May 2008 to 22'"' March 2012 that can be used in any CV, resume or other documentation/communications furnished by [him] to any third party for the purpose of seeking employment or work related assignment to establish what support [he] is entitled to from the [respondent] in respect of career.
3. To make any other recommendations as may be appropriate"
A number of recommendations were made from this, but it appears that the complainant baulked at a requirement that this be in ‘full and final settlement’ of the issue on the basis that it might estop him from some future action such as a referral under the Protected Disclosures Act.
There are a number of reasons for observing that this matter should have been resolved a long time ago, and probably following the publication of this report. It has consumed the time, energy, and other resources of both parties, but especially the complainant long beyond the point where there should have been a resolution. It is now nearing the end of that process.
Despite my sympathy for what the complainant has endured at a personal level, the means of bringing this long saga to an end lies overwhelmingly in his hands. Much has been done by the respondent, but it has not met the complainant’s expectations. But at this stage the cost benefits (and I do not refer to financial costs) of continuing are surely disproportionate to any positive outcome.
In any event, some of the aspirations or demands he apparently sees as being necessary to make this positive outcome possible for him, are, in my considered opinion, so unreasonable or unattainable as to represent an impossible basis for doing so. He must confront this reality.
I accept that the respondent has made good efforts to go as far as it could to resolve the issue. This leaves the Independent Report as one means of bringing matters to a conclusion. It is a good model of how such exercises should be conducted; it is comprehensive, fair and proposes balanced conclusions which would be sufficient to bring most of similar disputes to a conclusion.
At this stage the complainant must engage with the reality of this situation and make a decision as to whether he seriously wants this long-running saga to be brought to a conclusion; something he needs more than anyone, or not.
(One small example relates to the possibility of a secondment. The respondent has no means of requiring third party employers to accept the complainant into their ranks, and while they might try to do so, it is obvious that there are serious constraints on doing so).
As already noted, he has ambitious demands, most of which fall outside the realms of what is realistically attainable. Unless he undertakes some substantial reappraisal of his expectations and strategy, he is facing the prospect of this continuing indefinitely, which is surely unthinkable.
Accordingly, I endorse all of the recommendations of the independent report (subject to what follows below) and recommend that both parties accept them all and in full as putting a final end to the issues that gave rise to this referral.
Partly to take account of the passage of time since the report was published, but also to encourage the complainant to put the matter behind him and move on with his career, I recommend that the sums to compensate for what was described as ‘General Damages’ and ‘Loss of Opportunity Cost’ in the independent report should be increased by €12,500 and €7,500 respectively. |
Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I endorse all of the recommendations of the independent report (subject to what follows) and recommend that both parties accept them all and in full as putting a final end to the issues that gave rise to this referral.
I recommend that the sums to compensate for what was described as ‘General Damages’ and ‘Loss of Opportunity Cost’ in the independent report should be increased by €12,500 and €7,500 respectively. |
Dated: 3rd March 2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Industrial Relations, loss of promotional opportunity |