ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00036131

Parties:

Complaint:

Date of Adjudication Hearing:  23/08/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 41 of the Workplace Relations Act 2015 on 26th November 2021.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a face-to-face hearing at Lansdowne House on 23rd August 2022. The Complainant represented himself and was in attendance.  The Respondent was represented by IBEC and a number of witnesses were present in the event that their evidence was required.  Comprehensive written submissions and supporting documentation was received on behalf of both Parties.  The hearing was held in public pursuant to Section 41(13) of the Workplace Relations Act 2015, as amended by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Parties were made aware that their names would be published within this decision.  I have considered all of the evidence and submissions received herein.

Background:

It was common case that the Complainant was employed as a Social Care Worker by the Respondent Charity from 16th November 2015 until his resignation on 26th April 2021.  He had been subject to a disciplinary process in 2019 leading to a first written warning which was upheld on appeal.  In the course of this process, he raised a grievance against a manager and in the ensuing investigation, sought to rely upon redacted data pertaining to a service-user which he had accessed internally and compiled.  His grievance was not upheld and he was subject to a further disciplinary process arising from accessing and/or using the data for this purpose which the Respondent contended was in breach of its workplace policies.  He was issued with a final written warning which was upheld on appeal and he subsequently resigned.  He referred this complaint to the WRC under Schedule 2 of the Employment Permits Act 2006, contending that the second disciplinary process was unjust and constituted penalisation for raising a grievance.  The Respondent contends that the disciplinary process was conducted in accordance with due process and objects to pursuit of this complaint as not having any legal basis.  The Respondent further contends that this complaint is statute-barred.  As the first objection goes to jurisdiction, it is necessary to determine first.

Preliminary Objection as to Statutory basis - Summary of Respondent’s Case:

The Respondent raised a preliminary objection to the pursuit of this complaint under Schedule 2 of the Employment Permits Act 2006, which provides for the referral of a complaint to the WRC for penalisation under Section 26(3) of the Act as follows: “An employer shall not penalise or threaten penalisation against an employee for- “(a) making a complaint to a member of the Garda Síochána or the Minister that a provision of the Act of 2003 or this Act is not being complied with, (b) giving evidence in any proceedings under the Act of 2003 or this Act, or (c) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.”  As the subject-matter of this complaint does not relate to a Work Permit or constitute any of the actions provided for by Section 26(3) of the Employment Permits Act 2006, it was submitted that there was no lawful basis for same and accordingly, this complaint should be dismissed.

Preliminary Objection as to Statutory basis - Summary of Complainant’s Case:

The Complainant conceded that the subject-matter of his complaint against the Respondent did not constitute any of the actions provided for by Section 26(3) of the Employment Permits Act 2006.  He submitted that he had intended to select Section 26 of the Organisation of Working Time Act 1997 which provides that: “An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act…”  However, he also conceded that the subject-matter giving rise to his complaint did not fall under this Act either.  Penalisation provisions contained in other statutes were scoped with the Complainant in light of the subject-matter of his grievance and complaint but he was unable to identify any applicable statutory provisions under which he could lawfully pursue this complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.  In circumstances where the Complainant has not identified any statutory provision under which the subject-matter of his complaint may be referred to the WRC, I find this complaint frivolous and vexatious within the meaning of Section 42(1) of the Workplace Relations Act 2015 and accordingly, dismiss same.  Consequently, it is unnecessary to consider the second preliminary objection or substantive complaint.

Dated:   13th September 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Frivolous and vexatious complaint - Section 42(1) of the Workplace Relations Act 2015