ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: ADJ 45364

Parties:

	Worker	Employer
Anonymised Parties	An Operative	A Training & Development Centre

Representatives

Self - Represented

Centre Managers

Disputes:

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00047566-001	08/12/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00047566-002	08/12/2021

Workplace Relations Commission Adjudication Officer: Michael McEntee

Date of Hearing: 29/11/2022

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following 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 information relevant to the dispute.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Associated Complaints

An Adjudication Employment Rights Complaint under the Employment Equality Act,1998 (Ref No Adj 39477) is linked to this Adjudication. A further complaint under the Organisation of Working Time Act, 1997 regarding Public Holiday pay was withdrawn.

Background:

The issue in contention concerns a complaint that the Worker, Mr M, suffered, Disciplinary sanctions, and Bullying and Harassment in his conditions of employment particularly following an incident on the 6th October 2021.

The Employer is an Employment Development Information Centre (EDIC) with a subsidiary Traveller Youth Training venture.

The employment commenced in November 2010 and continued at the date of the Dispute referral.

The rate of pay was stated to be €201 net for 19.5-hour week.

1: Summary of Workers Case:

The issues can be traced back to an incident with the Worker’s line Manager, Ms A, on the 6th of October 2021. He had raised the question of how his Bank Holidays were being paid and the Manager had responded most inappropriately.

The Worker made a formal complaint to the Board of the Centre regarding the behaviour of Ms. A. A counter complaint was made by the Manager against the Worker.

Ms A made various defamatory remarks about the Worker, the principal one being that he was a “Coward” and had falsified his attendance details. The allegation of being a “Coward”, in the presence of witnesses, was particularly upsetting and offensive to the Worker personally.

Despite numerous efforts the Board of the Centre engaged in foot dragging and completely unacceptable delays in both investigating and attempting to resolve the issues. Requests for copies of statements made by Ms A and other witnesses to the meeting of the 6th October were refused on the grounds that the persons concerned had “Left the company”. This was completely unacceptable.

If the Worker had not been a Traveller, the Board would have taken his complaint much more seriously and the endless foot dragging would never have taken place.

The delays in dealing with a legitimate complaint were a clear case of Discrimination on the Traveller grounds and a breach of the Centre’s own Dignity and Respect in the Workplace Policy.

2: Summary of Employer’s Case:

2:1 General Background

The Organisation is a Community based, social enterprise that has been successfully addressing the training and upskilling needs of citizens distanced, for whatever reason, from the formal Labour Market. The smaller Training offshoot is designed to cater primarily for the Traveling youth population which experiences a very high incidence of unemployment.

2:2 CA-00047566-001 Disciplinary Issues

The Worker began as a trainee in 2010 but was offered and accepted a permanent general operative position in 2011.

In August 2021 the Worker raised the issue of proper Bank Holiday payments. He maintained that the methodology used was not a proper interpretation of relevant legislation. The issue was referred to SIPTU. It formed one of the issues in the disputed meeting with the Offshoot Manager, Ms A, in the 6th October meeting.

The Centre is a very committed Social Enterprise with Trade Union full time Officials on the Board.

The issues raised by the Worker were addressed as quickly as possible by the meeting on the 12th October 2021. Normal procedures as set out in the Handbook and Procedures were followed.

No disciplinary actions were taken against the Worker, but a low-level warning was issued to the Line Manager Ms. A. At this stage she had already given notice of her resignation.

On an Industrial relations basis there could be little cause for the Dispute. Procedures were followed and an outcome was delivered by the 21st October 2021.

2:3 CA-00047566-002 Bullying and Harassment issues.

The Centre has a well-defined Dignity and Respect in the Workplace Policy.

Bullying has to be “repeated” behaviour. In this case the dispute centred around the meeting of the 6th October with the Manager Ms A. The evidence was that it was a “heated” meeting with witnesses present. It resulted in a low-level Disciplinary procedure, a warning, against the Manager Ms A.

The Centre investigated the issue fully in keeping with the Dignity and Respect Policy of the Centre.

In view of the need for confidentiality in the Dignity and Respect Policy the request (4th November 2021) from the Worker for copies of statements made, as part of the investigation, by Ms A and other workers regarding the 6th October meeting was declined. Ms A and the other Witness had formally withdrawn their statements by this stage.

2:3 In general this Dispute and the Management response (both to the meeting of the 6th October and the ongoing Public Holiday Pay complaint) was handicapped by staff turnover, two Managers of the Training Centre left in a short period of time including Ms A on the 29th October 2021 and other witnesses withdrew their statements. Internal cross over within SIPTU further delayed matters and a very detailed examination of time sheets to establish the Worker’s Public Holiday position was required. It was eventually agreed that a financial offer be made in June 2022 to the Worker to “close off the issue”.

2:4 Employer closing remarks

The Employer pointed to very long and positive history of the Organisation in working closely with the Traveller Community. The Centre has upwards of 70% Traveller background employees.

A heated meeting took place of the 6th October 2021. The fall out, witness statements, Investigations etc were dealt with properly and no real basis exists for a Dispute under the Industrial Relations Act,1969.

The Worker had not been disciplined in any way and no grounds for saying he had been Bullied or Harassed existed.

3: Adjudication Conclusions:

3:1 Opening remarks

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

The Worker pursued a very well-argued complaint, under different Legislation, regarding his Public Holiday pay. He was actively assisted by SIPTU in this regard. None of the Parties can have any issue with this other than the very protracted delays that developed due to a variety of reasons. The associated Adjudication under the Employment Equality Act,1998 considered this carefully.

Oral evidence from both sides was crucial and in particular the meeting of the 6th October 2021.

3:2 CA-00047566-001 & 002 – Discipline and Bullying & Harassment disputes.

The Adjudication Officer wearing an Industrial Relations Act,1969 “hat” has in his prior career some experience of how often everyday language can be a source of dispute particularly with Travellers or people outside the “mainstream”.

Language can be crucial. Differing interpretations of everyday words/phrases can often be of surprising importance depending on background and culture. “Coward” is one such word.

There appeared to be no doubt from the evidence that the Worker here believed strongly that he had been called a “Coward” before witnesses from his own Community. This was his major motivation, it appeared, to get copies of statements regarding the meeting. Being called a “Coward” in any context is upsetting. In this situation it appeared to have a more serious personal and community background for the Worker.

The Manager, Ms A, and the other witness who gave statements withdrew all their evidence and the Centre believed that this closed off the matter.

The Worker did not take a low-key approach and pursued the matter to a full WRC Hearing on the 29th November 2022 some 13 months later. His upset was still evident.

Procedurally, under all Legislation, the Employer acted properly, and no fault can apply.

However, in the light of the background of the Centre and the delicate cultural issues involved in the use of language, some gesture of alleviation would be worthwhile for all concerned, especially for the Worker.

Accordingly, in this light, a Recommendation of a Charitable Donation of € 500 to a Charity, closely involved with Traveller issues and suggested by the Worker will be made by the Adjudication Officer.

4: Recommendation:

CA-00047566-001 & 002

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

A Recommendation of a Charitable Donation, by the Employer, of € 500 to a Charity, closely involved with Traveller issues and suggested by the Worker is made by the Adjudication Officer.

Dated: 25th October 2023