ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001517
Parties:
| Worker | Employer |
Anonymised Parties | Childcare worker | Childcare provider |
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 - 00001517 | 06/07/2023 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 09/10/2023
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.
Where applicable, this investigation may involve an assessment of whether processes have complied with the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. 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 it 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 6th of July 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 administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.
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Summary of Workers Case:
The Complainant was not represented and made her own case. Ther Complainant was happy, when asked, to make an Affirmation to tell the truth. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant outlined her employment with the Employer, culminating on the date when the dispute between the parties arose. The Complainant is a chef and has operated in the niche area of catering in Childcare and Creche facilities for the last five or six years. The Complainant came to work for the for the Respondent childcare facility in and around November of 2021. Some eighteen months later it was discovered that the Complainant was not Garda vetted. This gave rise to an argument in the workplace which the Complainant felt amounted to her being bullied. 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 representation at this hearing. The Respondent provided me with a written submissions on the day of the hearing. I have additionally heard from a number of witnesses for the Respondent – this evidence was on Affirmation. 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 rejects that there has been any wrongdoing/bullying. 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.
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Conclusions:
I have carefully listened to the evidence adduced in the course of this hearing. The Complainant is a chef and has operated in the niche area of catering in Childcare and Creche facilities for the last five or six years. The Complainant came to work for the for the Respondent childcare facility in and around November of 2021. The Complainant was leaving a post that she had previously held for four years at another Creche. I understand that the Complainant was fully Garda vetted in her previous employment. It is common case between the parties that the issue of Garda vetting did not arise in the Interview process, in the course of the induction, nor at the end of the probation periods. This is surprising. The Complainant seems to have been under the mistaken assumption that her previous Garda vetting would carry over to the Employment. Her new Employer Ms. NB did not think her kitchen-based staff would require a Garda vetting process. This was, to my mind, a Naive assumption to make and the greater onus is on the Employer in this regard. Some eighteen months later it was discovered that the Complainant was not Garda vetted. This came to light following a TUSLA inspection of the workplace which took place on the 12th of June 2023. By the 13th of June, two members of staff (including the Complainant) were identified as being on the premises without having been Garda vetted. It is quite clear from the correspondence provided to me at the hearing that TUSLA expected any persons not compliant would not have access to the workplace. The Complainant was very upset and worried by this development. Not surprisingly she felt that her continued presence in this workplace was a breach of the regulations and that she might be personally liable to prosecution. On the 13th of June she got conflicting communications. Her direct Line Manager E told the Complainant that she had advised her own Line Manager B that the Complainant should not be in the workplace. I am told that B had assured E that the Complainant could stay on. I accept that Manager B and the Creche owner NB were in communication with TUSLA concerning the two employees that were not Garda vetted. They had accepted that one of the Employees had to remain at home until the situation was rectified. This Employee worked directly with the children. Regarding the Complainant’s status, the Employer was somewhat ambiguous, suggesting that the Complainant could remain on the premises as long as she had no interaction with the children. The Complainant was concerned that her reputation in the industry would be compromised if it was generally known that she had worked in childcare without having been Garda vetted. This would be particularly acute if it was discovered that she had continued to work after TUSLA had determined that her presence in the workplace was contrary to guidelines. The Complainant also knew that she had never performed her job without interacting with the children. To my mind, the Respondent should have sent the Complainant home as soon as the problem arose. This was what TUSLA expected. If they could thereafter negotiate allowing the Complainant return back to the premises before a Garda Vetting, then so be it. What they did instead was keep the Complainant in the dark as to what she should do. In the circumstances the Complainant contacted TUSLA herself. Not surprisingly, the TUSLA advice was that the Complainant should not be on the premises without Garda vetting. The Complainant indicated she was going home. There followed a very nasty scene between the Manager B and herself who was seemingly raging that the Complainant had gone behind Management’s back in contacting TUSLA. For the avoidance of doubt, it should be noted that I accept this version of events. B’s behaviour towards the Complainant was unacceptable. The only thing the Complainant sought to do was to be compliant under the Law. I understand that the complainant has not yet returned to the workplace, and it seems that she is unlikely to though this might be a matter the parties have yet to agree on. I accept that the Complainant felt that this was an incident of bullying. However, I must agree that this was a once off occasion and arose in reaction to a shifting and difficult situation in the workplace. The fall-out from the TUSLA inspection was having a huge manpower impact. In making a compensatory award I have to have regard for the fact that the Complainant has not raised a workplace Grievance against B and has therefore not exhausted the in-house procedures open to her. In conducting my investigation, I have taken into account of all relevant submissions presented to me by the parties.
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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 pay to the Complainant the sum of €750.00 within four weeks of the date of this recommendation.
Dated: 25-10-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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