ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001483
Parties:
| Worker | Employer |
Anonymised Parties | Catering Assistant | Outsourced Catering Provider |
Representatives | Shonagh Byrne SIPTU | Robert Jacob Jacob and Twomey Solicitors LLP |
Dispute:
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 - 00001483 | 26/06/2023 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 16/10/2023
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 a 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.
In effect, Section 13 states that where a trade dispute exists or is understood to exist and involves a worker or workers then a party to the dispute may refer it to the WRC. The WRC will not deal with disputes connected with
- rates of pay of a body of workers,
- the hours or times of work of a body of workers
- or the annual holidays of a body of workers.
The Adjudicator must avoid making a recommendation which has a collective impact on a body of workers.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin 4. In line with 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) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. The hearing was not, however, conducted in public as the hearing concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 26th of June 2023. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances asked parties to make the Affirmation. It is noted that the giving of false statements or evidence is an offence. |
Summary of Workers Case:
The Complainant attended in person and was fully represented by her Union representative. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 9th day of October 2023. This was prepared by the Union representative and included a number of documents being tendered as evidence and being relied on by the Complainant. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that her Employer unlawfully put her on Lay Off in circumstances where she was available for work and her Employer was not entitled to put her out on Lay Off as her Contract of Employment did not provide for same. The Complainant is, however, happy in her place of work and sought to engage with the IR process to find a way forward. 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. |
Summary of Employer’s Case:
The Respondent had legal representation at this hearing. The Respondent entity also sent two witnesses to represent the Respondent position. The Respondent provided me with a written submission which I received on the date of hearing though which I understand had already been sent to the WRC. I have heard the evidence of SW (the HR Manager) who made an Affirmation before setting out her Employer’s position. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. The Respondent recognised the validity of the issue raised by the Complainant though sought to provide context. More importantly the Respondent was willing to engage with the Complainant to find a pathway forward. 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. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The parties actively engaged in this Industrial Relations process and have provided me with a framework for their Employment relationship into the future.
The Complainant is happy to continue working with the Respondent company. The hours are now fixed at 25 hours per week, but this may be subject to change as may be agreed between the parties. The Complainant will continue in the Blanchardstown facility (where she has worked since 2016) for the foreseeable future. The parties have agreed that if and when an assistant catering position arises at the Dunboyne facility which might be suitable for the Complainant, then she will be given first refusal on that position. There is no time limit on this objective though it is hoped that the Complainant will not have to wait too long.
In the meantime, the Complainant recognises and accepts that business in the Blanchadstown Facility drops off in the summer months (June to September) and that the Complainant might be subject to a plan of Lay-Off but preferably will be placed at one of the other facilities owned and run by the Respondent. The Respondent agrees (in order of preference) that if a temporary position is available in the Dunboyne facility then the Complainant will be sent there. If not Dunboyne, then the Complainant will be sent to the Ballycoolin facility and if not Ballycoolin then the Complainant will be asked to work in the Marino facility. If none of the above facilities have a role for the Complainant in the summer months then another facility can be mutually agreed between the parties.
The Complainant will not be put on Lay-Off or sent off-site to work at any other time of the year.
At all times the objective is that the Complainant will continue in employment and will not fall into the category of “seasonal worker” as has happened in the past. It is also agreed between the parties that the Complainant’s status as a permanent part-time employee would be protected.
The above arrangement applies only to the Complainant and is to apply to the Complainant for as long as it takes to get her into a position in Dunboyne. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
Having already articulated my opinion on the merits of the within dispute, I am recommending that the Respondent ensure that the Complainant is kept in permanent full-time employment throughout the year with the caveat that the Complainant might have to be seconded out to other facilities/places of work when her current place of work experiences the seasonal slowdown expected over the summer months.
Dated: 26th October 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words: