ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: ADJ-00047684

Parties:

	Worker	Employer
Anonymised Parties	Retail Assistant Manager	Retail Outlet

Representatives

Initially represented by Mr. Paul Mitchell and then represented himself at subsequent hearing.

Killian O'Reilly Fieldfisher Roland Rowan BL

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	CA-00058717	25/07/2021

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Date of Hearing: 05/10/2022 and 21/06/2023

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 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 non-employment, or the terms and conditions of or affecting the employment of any person.

Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and having conducted an investigation into the said trade dispute as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation to the parties to the dispute which will set forth my opinion on the merits of the within dispute.

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). It is noted that the Complainant herein is alleging that fair procedures were not followed and that he was forced to tender his resignation.

Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties and 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.

Background:

The Complainant brought a dispute to the attention of the WRC by way of a Workplace Relations Complaint Form dated 25th of July 2021. At that time the Complainant had already resigned from the workplace.

Summary of Workers Case:

In his evidence the Complainant set out a comprehensive history of the twelve months leading up to his resignation on the 25th of January 2021. The Complainant says that his Line Manager was giving him an unnecessarily hard time. In the first six months of 2020 the Complainant was faced with no less than two Disciplinary Investigations both of which he says were abandoned as they were without foundation. In response to a third disciplinary Investigation triggered in and around August of 2020 the Complainant countered by bringing Grievances against his Line Manager and his Disciplinary Line Manager.

This Grievance was brought under the Respondents Dignity in the Workplace Policy. An Investigation commenced. The two Managers against whom complaints had been made were given a right to reply to the Grievance raised.

The Complainant takes issue with the Statements made by these Managers. In particular, the Complainant states that the Managers were allowed to make comments and statements about him which were personal and offensive. This included calling him a liar, calling him a drunk and criticising his personal appearance. The Complainant states that no such issues had ever been raised in the past and had no relevance to the Grievance brought by the Complainant. In effect the Complainant was saying that the tables were turned on him in the course of this Investigation and it was his behaviour and performance which was being called into question and not the two Managers with whom he had had a problem and about whom he had triggered the Grievance.

In the course of his evidence the Complainant repeatedly came back to this issue. He was seriously aggrieved that racist (as perceived by him) and derogatory comments were allowed to be taken down in an unchallenged format and presented to him as somehow true.

In addition to this, there were ongoing issues concerning the Complainant’s health and the validity of his absences from work were being called into question.

On the 22nd of January the Complainant was advised that he should return to the workplace where he would continue to work alongside the Line Manager against whom his complaint had been raised. The outcome of the Dignity at Work process was made known to the Complainant and he was made aware of the fact that his complaints had gained no traction (all of them, but one, were not upheld).

In the meantime, a fourth Disciplinary Investigation had been commenced against the Complainant.

It was at this point that the Complainant resigned his position of Deputy Store Manager citing the “…company’s appalling approach to my health and safety, continued underpayment of my salary and a combination of other negative factors to have made this position untenable”.

The Complainant stated that he did not feel he was obliged to utilise the internal Grievance process all over again or to Appeal the outcome of the Grievance process in circumstances where he had lost faith in the process.

Summary of Employer’s Case:

The Employer stands by its processes. Even if there were flaws in the process (which is fully denied) the Employer has asked that I consider the fact that the Complainant did not exhaust the internal processes before bringing a dispute before the WRC.

It is noted that many employers will hear Appeals and indeed Grievances even after an Employee has resigned from the workplace. This reflects a positive desire to ensure that an Employer wants all Employees (even those who have already moved on) to trust in the systems operating in the workplace. The Complainant was therefore not precluded from Appealing even after his resignation.

The Respondent says that it was open to the Complainant to raise a Grievance about the mistakes he perceived to have been made in the interviews given by his two line Managers. The Employer also says that the Complainant might also have appealed the final Grievance outcome raising the issues at that point.

Conclusions:

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

I am inclined to agree that the Complainant did not exhaust the workplace mechanisms for bringing a fresh Grievance or appealing the outcome of the Grievance already made. On the face of it, I would accept that the two Managers gave statements that went well beyond defending their actions. Instead, they were allowed to take issue with they Complainant’s performance and appearance which were perceived by the Complainant to be borderline racist. The Complainant should not have been precluded from raising questions as to the harsh and objectionable language used by the Line Manager and which seemingly went unchecked.

However, the Complainant did not formally challenge this process while still in the workplace.

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 should be more careful when taking statements. If further issues are raised, then they should be dealt with in accordance with fair procedures. AS the Complainant has already left the workplace I can put this matter no further.

Dated: 08th September 2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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