ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00000653

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Thomas O'Driscoll

Date of Hearing:             09/08/2023

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.

The Employer sent in a written submission prior to the dispute questioning my jurisdiction to investigate the dispute and attended at the outset to formally submit its objections. The Employer left the proceedings and did not take part in the substantive investigation after I gave my decision that I could properly investigate the dispute.  

Employer’s Preliminary Application:

The Employer’s position was (1) that it is not appropriate for the matter to be brought before the Workplace Relations Commission (WRC) under the Industrial Relations Act 1969 (hereinafter “the 1969 Act”) and (2) that if the Adjudication officer intends to investigate the issue, the Respondent formally objects to such investigation taking place and will participate in proceedings.

The Employer cites  Section 13(2) of the 1969 Act where it  provides: (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of payof, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may

refer it to a rights commissioner.

 The Employer refers to the claim in the Worker’s initial complaint form which the Employer claims is a pay claim.  The Employer submits that it is clearly evident that it relates entirely to the Worker’s rate of pay, which the Employer submits, is expressly prohibited by S13(2) of the 1969 Act.  The Employer submits that the Adjudication Officer is not permitted to engage in an investigation of the dispute and that the dispute is not properly before the WRC.

Furthermore, the Employer relies on S13(3)(b)(ii) of the 1969 Act which sets out inter alia that an investigation cannot be conducted by an Adjudication Officer if a party to the dispute notifies in writing their objection to the dispute being investigated. The Employer referred to a copy of this written objection. The Employer acknowledges that this written objection was delivered outside the statutory time limit provided by the 1990 Industrial Relations Act (hereinafter “the 1990 Act”). The Employer submits it was not in a position to submit the objection within the said time limit in circumstances where it did not receive the Complaint Form until it was provided to it by the WRC in or around May 2023.

Finally, the Employer submits that the dispute falls far outside the vortex of an industrial relations dispute when the Complainant has not even raised a grievance internally with his Employer in respect of this issue, which he had the ability to do in accordance with his contract of employment and Employee Handbook.

 For the reasons set out above, the Employer submits that the investigation of the dispute should not proceed and further that if it does proceed the Employer elects not to engage with same.

Findings and Conclusions - Employer’s Preliminary Application:

There are two grounds which the Employer relied upon with regard to its application: (1) that a pay   dispute of an individual worker cannot properly be investigated under the 1969 Act and (2) that the Employer objected to the investigation and therefore it should not go ahead. The issue with regard to the alleged non-utilisation of any grievance procedure by the Worker is a substantive issue which can be ordinarily investigated therefore I am not dealing with it as part of the Employer’s preliminary application.

Section 13(2) of the 1969 Act:

Section (2) providesas follows:

“ Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of payof, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

This section clearly states a trade dispute for an individual, other than a collective trade dispute involving a body of workers, can be investigated. It has well been established that the application of a collective agreement to an individual can be investigated provided it does not affect the agreement per se. I am satisfied that no collective group of workers would be affected by the outcome of this case.  Therefore, I reject the Employer’s argument on this point.

Section 13(3)(b) of the 1969 Act:

The Employer claims it did not receive the original claim when the Worker first submitted the claim on 29 March 2021. The Workplace Relations Commission, when informed of this by the Employer’s representative, sent out a copy of this form to the Employer on May 18, 2021. The Employer sent a letter of objection on 24 July 2021.

Section 36 (1)  of the  1990 Act  provides:

(1) An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969, by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.

The Employer received a copy of the original claim form on 18 May 2021 but objected to a hearing on 24 July 2021  which was outside of the three weeks limit for lodging such an objection. I therefore find that the hearing can proceed.

The Employer attended at the outset of the hearing, which was heard with associated employment rights complaints. I gave my preliminary decision that the dispute was properly before me, based on the reasons outlined above. The Employer declined to attend the dispute hearing. The Hearing proceeded.

Background:

Summary of Workers Case:

Summary of Employer’s Case:

Conclusions:

Recommendation:

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

Having considered the Worker’s submission, I recommend the following:

1. That the Employer would, from the date of receipt of this recommendation apply a 10% increase to the Worker’s salary, in line with the collective agreement and that all future pay increases, as identified in the relevant collective agreement, would be applied to the Worker.

2. That the Employer would pay the Worker €3000 in backpay. This is not the full sum claimed but is recognition of the fact that the employer had experienced financial difficulties during a period of receivership.

Dated:   06/09/2023

Workplace Relations Commission Adjudication Officer:  Thomas O'Driscoll

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