Worker

Employer

Anonymised Parties

A Senior Temporary Lifeguard

A County Council

Representatives

SIPTU Workers Rights Centre

 LGMA

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 - 00000686

16/09/2022

The Worker was employed on a seasonal summer basis for nearly ten years as a

Seasonal Temporary Life Guard. When he applied for a seasonal contract in 2022 his application was not successful, and he maintained that this refusal to rehire was unfair and that his entitlement to defend allegations made against him for non attendance at work were not properly investigated. The Worker submitted a similar complaint under the Unfair Dismissals Act 1977 which is dealt with separately. The Employer alleged that the situations were the same and that one of the two proceedings should be struck out on the basis of the rule in Henderson V Henderson, where you essentially cannot litigate the same set of circumstances via two different means.

The Worker has been employed by the Employer as a Lifeguard since in or about June, 2009. The Worker’s last assignment began on 5/6/2021 as a Temporary Senior Beach Lifeguard through the provision of Fixed Term Contract[1], the 13th such contract provided to the Worker.

The Worker in the course of his employment with the Employer has performed more than 1000 rescues and was for the last 9 years of his employment the Senior Beach Lifeguard. 

The Worker was seasonally employed annually until March 2022, when the Worker was informed that the Employer would not be proceeding with his application for the coming year. The basis for the notification was that the Employer alleged that they became aware that on the 12th September, 2021, when the Worker was on sick leave, that he was in attendance at a Wedding. At the time of the sick leave the Worker was in the employ of the Employer on foot of the Contract dated the 9th June, 2021. The Worker was not provided with the allegation at the relevant time (September 2021), was not afforded an opportunity to respond to the allegation, and was not afforded an opportunity to have a fair and impartial examination of the issues, contrary to due process and fair procedures, but more noticeably contrary to the Disciplinary policy and procedure of the Employer and specifically Section 7 of the policy which states:

“General Principles

The procedure complies with the general principles of natural justice and fair procedures which include: That the details of the allegations or complaints be out to the employee concerned; That the employee concerned be given an opportunity to respond fully to any such allegations or complaints; That the employee concerned is given the opportunity to avail of the right to be accompanied by a work colleague or represented by a recognised Trade Union representative (management reserves the right to be represented during the procedure as appropriate); That the employee concerned has the right to a fair and impartial examination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the employee concerned to them, any representations made within the process by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.”

It is also of note that Section 16 of the Contract of the Worker sets out “the County Employer and the main negotiating unions have agreed to a procedure for dealing with grievance and disciplinary matters which will apply to your employment”. Despite this the Employer proceeded outside of the agreed processes to the detriment of the Worker herein. 

In the notification to the Worker that the Employer would not be proceeding with the application of the Worker for the role of Senior Beach Lifeguard for the 2022 season, the Employer sought to rely on the fact that there was a final written warning on file. That correspondence was dated the 29th July, 2021, however the sanction had been imposed consequent to the Disciplinary Hearing on the 2nd September, 2020.  That sanction had arisen as a result of an Investigation following an allegation in the 2020 Season the matter was referred to the WRC for adjudication in August 2021 and was therefore under appeal to the WRC in March 2022. 

It is of note that the Worker had an unblemished record until the allegations, which gave rise to the Disciplinary process in 2020. The Worker is of the firm belief that handling of the allegations in 2020 was as a direct result of his complaint to the Health and Safety Authority and his complaint to the Workplace Relations Commission in that year, which resulted in a contravention notification to the Employer.

The Worker herein was also of the belief that the decision taken not to proceed with the application for the role in the 2022 season was also as a result of a Protected Disclosure which the Worker had made to the Minister for Rural and Community Development in January, 2022. This disclosure had resulted in an investigation commencing at the material time and running for 18 months, with the Report recently issuing in the matter. 

The matter herein was referred to the Workplace relations commission on the 16th September, 2022.    

Mitigating circumstances

The Worker had over a decade of unblemished service with the Employer. This was clearly not taken into account by the Employer in arriving in its decision not to proceed with the application of the Worker. The Representative contended that a reasonable employer in the position of the Employer would not have pursued this course of action.

The Worker herein was a respected member of staff of the Employer and had in the course of his employment gained the respect of Management, Colleagues and members of the public, thousands of the latter who depended on the Worker to ensure their safety while engaging in recreational activities. 

Given that it is not the role of the Adjudication Officer to re-investigate the matter or to substitute his or her opinion for that of the Employer, the Workers essential argument is, for the reasons stated above, the decision not to employ him was not reasonable.

The referral with regard to the Industrial Relations matter is based on the same set of facts and should the Adjudication Officer deem that the matter will not be disposed of in accordance with the provisions of the Unfair Dismissals Act 1977 as amended, it was submitted that the Adjudication Officer should investigate the matter in accordance with the provisions of the Industrial Relations Act, 1969, as amended. However, it is clear from the facts of the within matter that the Employer herein failed to follow not alone due process and fair procedures, they also failed to follow even the principles and provisions of their own Disciplinary Procedure. In the Case of A Worker and the HSE LCR2228716 the Labour Court found in circumstances where a worker had worked in an acting up position for five and a half years that the “Employer could offer no justification for the breach of their own policy other than it was a regular occurrence”. In that case the Court awarded compensation of €15,000. It was submitted that there was a significant failure of the Employer in this case to follow their own procedure, and that even when called upon to do so, they failed to offer a justification for the breach of their own policy.

 The Worker sought redress in the form of compensation, as he has secured employment in an alternative role. 

The Worker is seeking to submit the same complaint under two separate pieces of legalisation; he is obliged to confirm under which piece of legislation he wishes to proceed.  He cannot seek to prosecute and thereby seek redress for the same complaint under two separate pieces of legislation.

The Worker was employed by the Employer as a beach lifeguard for the period 5th June 2021 to 12th September 2021.

The Worker was the subject of a disciplinary process by the Employer during this period of employment due to a complaint made against him by a member of the public relating to an incident which took place on the 15th July 2020. In accordance with the Employer’s Disciplinary policy and following an appeal by the Worker, a final written warning issued to the Worker on 29th July 2021. This final written warning was valid for a period of 12 months i.e. until 28th July 2022.  The Worker’s last day of employment with the Employer was 12th September 2021. On this date, he contacted the Employer and informed them that he was unwell and took one day’s uncertified sick leave and was paid by the Employer. However, it subsequently came to the Employer’s attention that the Worker had in fact attended a wedding on 12th September 2021.

On 16th March 2022, the Employer informed the Worker that they would not be proceeding with his application form for the position of temporary Senior Beach Lifeguard for the 2022 season. In 2022, when the Employer advertised for Beach Lifeguards for the summer season, the Worker applied. On 16th March 2022, the Employer informed the Worker that they would not be proceeding with his application form for the position of temporary Senior Beach Lifeguard for the 2022 season due to the fact that a final written warning was in place when he declared himself unfit for work, received sick payment from the Employer yet attended a wedding.

 It would appear from the Worker’s complaint form that he considers it appropriate that any further disciplinary action being considered by the Employer should have been carried out in accordance with their disciplinary policy i.e. a disciplinary meeting should have been held under the Employer’s disciplinary policy. The Employer is surprised with this, given the Worker’s previous stance in relation to the complaint made against him in July 2020. In this instance, when the Employer was engaging in a disciplinary process with the Worker, once his contract of employment with the Employer ceased on 13th September 2020, he specifically informed the Employer not to contact him as he was no longer an employee.

On 24th September 2020, the Worker emailed the Employer and confirmed that he received a package from the Employer the previous day. He informed the Employer that he did not consent to email, phone calls or post from Employer as he was no longer an employee. (The Worker’s seasonal contract with the Employer expired on 13th September 2020.) The Worker advised that if he received any more correspondence from the Employer, that he would report the Employer to the ‘Data Protection Agency’ for breach of privacy regulations. The Employer in that instance abided by the Worker’s instruction and did not engage with him any further in relation to the disciplinary matter until he re-commenced employment with the Employer as a beach lifeguard on 6th June 2021. The Employer then concluded the disciplinary process and the written warning sanction was imposed on 29th July 2021. However, the Worker disputed that the Employer had any authority to do this and submitted a complaint form to the WRC on 6th August 2021 stating that the disciplinary matter should have been concluded during the period of his employment in 2020 only and that the Employer had no right to re-commence the disciplinary process when he was successful in the recruitment process for a lifeguard position for the summer 2021 season and once again an employee of the Employer. A WRC hearing took place on 13th July 2022, and a recommendation issued on 14th October 2022 which did not find in favour of the Worker.

This current complaint is based on the same set of facts as with the previous WRC complaint outlined. The Employer was awaiting a WRC hearing date for the Worker’s first complaint under the Industrial Relations Act at the time that it made the decision not to proceed with the Worker’s application for employment as a lifeguard for the summer season 2022 i.e. 16th March 2022, the date the current complaint was submitted to the WRC.

 In summary, the Worker at one particular point insisted that the Employer had no right to engage with him relating to a disciplinary matter when he was no longer an employee and has now opposed his own stance and complains that the Employer did not engage with him in relation to a disciplinary matter when he was no longer an employee.

The Employer became aware that the Worker attended a wedding on his last day of employment i.e. 12th September 2021 when he had availed of a paid day’s uncertified sick leave which represents a clear breach of the Employer’s sick leave policy. There was a final written warning on his file. The Employer notified him that they were not proceeding with his application for the following beach season which it deems appropriate given the circumstances.

In response to the Workers claim that not rehiring him arose from his submission of a  Protected Disclosure in January 2022, the Employer submitted a copy of the letter giving notice to the Employer of receipt of a Protected Disclosure by the Department of Rural and Community Development. The letter, which is date stamped, shows the Employer received the letter and therefore notice of the Protected Disclosure by the Worker, on 22nd March 2022. The Employer issued a letter to the Worker on 16th March 2022 stating that they would not be proceeding with his application and therefore there is no connection between not rehiring the Worker and the Protected Disclosure he submitted. The Employer submitted the bond of trust had broken down between the parties.

The core issues in this dispute are;

Is the Worker entitled to bring essentially similar complaints under the Henderson v Henderson rule?

Was the Workers expectation to be rehired reasonable or was it an unfair and disproportionate action?

Was the Worker denied fair procedures?

Did the Workers allegation that his complaint under the Protected Disclosures Act have any impact on the decision to not rehire him for the 2022 season?

Findings;

An 1843 case, Henderson v Henderson, gives us a common law rule “that there should be finality in litigation and that a party should not be twice vexed in the same matter”.

Four recent Irish cases address again the issue of duplication of proceedings. Cunningham -v- Intel Ireland Ltd [2013] IEHC 207 is an important decision of the High Court in 2013 which deals with duplication of or parallel proceedings, that is, the bringing of a case arising from the same circumstances in multiple venues; for example, a claim in the Employment Appeals Tribunal for constructive for unfair dismissal and a claim in the High Court for wrongful dismissal/breach of contract/personal injuries. Intel Ireland Ltd. issued a motion seeking to strike out the plaintiff’s personal injury summons as an abuse of process and/or a duplication of the plaintiff’s equality claim against the defendant and/or for want of prosecution.  Intel Ireland Ltd. relied on s. 101(2) (a) of the Employment Equality Act 1998 – 2008 and upon the common law rule in Henderson v. Henderson (1843) 3 Hare 100, both of which are designed to prevent the duplication of proceedings. The plaintiff’s equality claim (that she was discriminated against on the grounds of gender) was heard but rejected by the Equality Tribunal. The plaintiff appealed that decision to the Labour Court and the appeal was ongoing. She claimed that the alleged discrimination significantly affected her “health and wellbeing”.. Her personal injury claim in the High Court appeared to relate to the same alleged damage to the plaintiff’s “health and wellbeing”. The defendant claimed that the same events caused the alleged personal injury claimed in the personal injury summons in the High Court and objected to being required to meet the same claim in High Court proceedings and in the statutory proceedings.There appeared to be no part of the claim in the personal injury summons that was not made to the Equality Tribunal. .

Justice Hedigan’s Decision under Section 101 of the Employment Equality Act 1998 – 2008 at (2)(a) provides;

“Where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual –

(a) shall not be entitled to recover damages at common law in respect of the case, and . . ..”

The rule in Henderson v. Henderson has at its heart the principle that:

The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter”

In Woodhouse v Consignia PLC [2002] 1 WLR 2558 it was stated:“The rationale for the rule in Henderson v Henderson (1843) 3 Hare 100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all, is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever, and that a defendant should not be oppressed by successive suits when one would do.” Justice Hedigan stated :”Thus all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. This is a rule that is of benefit to both plaintiffs and defendants, to the courts themselves and thus to the public interest. Thus, it is clear from her own pleadings and submissions in the two sets of proceedings that both her employment claim and her personal injury claim arise out of the same matters, i.e. alleged mistreatment in her working environment. When she chose to create this artificial distinction in the one essential complaint to pre and post-August 2008 by issuing these personal injury proceedings, the plaintiff, in my view, breached the provisions of s. 101(2)(a) of the Employment Equality Act 1998 – 2008 and breached the rule in Henderson v. Henderson. By confining her complaints in one set of proceedings these statutory and common law requirements do not in any way limit the plaintiff’s right to a remedy for those complaints. The Labour Court had and still has at its disposal ample jurisdiction to do so. In particular, as a lay litigant, the plaintiff is far better off having all of her complaints dealt with in the one set of proceedings. Thus the application of the defendant to dismiss these proceedings must be allowed”.

Stephens -v- Archaeological Development Services Ltd, 2010 IEHC 540 dealt with similar questions of duplication or parallel proceedings.In this case the Defendant brought a motion seeking:

(i) An order pursuant to the Rules of the Superior Courts striking out matters in the plaintiff’s statement of claim said to be unnecessary, scandalous, or which would tend to prejudice, embarrass or delay a fair hearing of the claim;

(ii) Alternatively, in order that the entire statement of claim be struck out on the grounds that the pleadings, inter alia, by reason of the plaintiff pursuing her claims in the Employment Appeal Tribunal as well the High Court therein amounting to an abuse of process, or are vexatious;

and/or

(iii) An order that this Court decline jurisdiction to hear the matter pleaded in the claim as no prior authorisation for the proceeding was granted by the Injuries Board.

The High Court decided:”The court will stay these proceedings until the outcome of the Employment Appeals Tribunal claim which will deal with the question of financial loss (if any) arising from the plaintiff’s dismissal, (if this is established)t

Morgan v Irish Horse Welfare Trust [2014] ELR 41 also dealt with the issue of parallel proceedings. At the beginning of the Employment Appeals Tribunal hearing an application was made to have the case adjourned because the Worker had instituted High Court proceedings for personal injury, loss and damage, but which also included a claim for compensation for loss of earnings. The Worker’s representative opposed this application claiming that there two separate claims, one for personal injury and one for financial loss and both claims were permissible. The EAT did not agree. It took the view that the Worker was making an artificial distinction between the 2 actions and both actions arose from an allegation of bullying. It adjourned the case pending the resolution of the High Court case

A different view was taken in Sarah Hickey v Bloomfield House Hotel UD 384/2012.. Bloomfield House sought an adjournment of at least 18 months to allow the civil action to be determined. The EAT refused the adjournment and stated:  “The Tribunal is absolutely mindful of the desirability of not duplicating proceedings, but must balance this requirement with the honest exercise of its own limited statutory function and jurisdiction. It would be unfair to the Worker if she was now being asked to put these proceedings on hold for an indefinite and unknowable period of time”.

Duplication of proceedings can be very costly but as both complaints were heard in tandem this is not a consideration in the assessment of this situation..t would be unwise to try to be definitive and draw firm conclusions as it appears each case will be judged on its particular facts and circumstance. .But a High Court decision of 2015 in Culkin v Sligo County Employer appears to indicate that you cannot litigate twice arising from the same set of facts, and refers to the common law rule set out in Henderson v. Henderson (1843) 3 Hare 100..

However, in these parallel complaints there are two fundamental differences. One complaint  is a trade dispute and one is the litigation of an employment law dispute. Secondly, the issue of whether or not the Workers submission of a protected disclosure was far more prevalent in the submission under the IR Act than the UD Act. Thirdly, the issue of a Decision on the Unfair Dismissal substantive complaint is statute barred. Finally, the Employer agreed to the dispute being referred to the WRC for adjudication when it had the opportunity to object and did not  and therefore consented to the dispute being adjudicated upon. It is for these reasons that I do not deem the rule in Henderson v Henderson applies to this dispute and I will issue a Recommendation on the dispute.

On whether or not the Workers expectation to be rehired was reasonable or was it an unfair and disproportionate action? The Worker was the subject of a Final Written Warning which was issued on the 29th of July 2021. The Worker had the right to appeal this Warning within 10 days under Section 13.1 and Section 13.2 of the Employers Disciplinary Policy. The Worker did not appeal this Warning internally. The Worker appealed the Final Written Warning to the WRC and a Recommendation issued on same dated October 14th 2022 which did not recommend the overturning of the Final Written Warning. This Recommendation was issued by a different Adjudicator.

The Worker was not dismissed by the Employer, he was just not re-employed by notification in March 2022 and the stated basis for the non-reemployment was that he had a Final Written Warning on file and due the events of September 12th 2021. The Worker did not appeal this decision at the time but a Representative for the Worker did request, on March 24th 2022, that the Employer “reconsider” its position. In considering whether to rehire an employee or not an Employer has the reasonable right to consider the prior employment relationship. For example, there is a high probability that a future employer would be very reluctant to hire a potential employee who had recently received a Final Written Warning in their most recent employment. The Employer in this case had to balance a long serious of fixed term employments between the parties against the fact that the Worker received a Final Written Warning in his last period of employment. On receipt of the Final Written Warning the Worker wrote to the Employer and stated  “””””””xx. The Worker acted unreasonably in this situation, and he may have had acceptable personal reasons for such action but, this did not dent him the opportunity to appeal the decision to not rehire him.

The Worker has since gained new employment and is seeking compensation. It would seem inappropriate to recommend compensation to a Worker who was on a Final Written Warning and for allegedly attending a Wedding while informing his Employer he was sick, The Worker, tellingly, did not make any contribution to the Hearing on the validity of this allegation. There was also no evidence submitted that the Worker had submitted any information to challenge the Employers assertion as to where he was on the day in question.

I find that it was not unreasonable of the Employer to take the Final Written warning and the events of September 12th 2021 into consideration when considering rehiring the Worker and especially the Workers actions by informing the Employer not to contact him the last period of employment had ended.

With regard to whether the Worker was denied fair procedures the Worker tried to have to both ways. He formally told the Employer on September 24th 2020 not to contact him in any shape or form as he was no longer an Employee. He then sought that an investigation should have been conducted in between his Fixed term contracts. The Worker effectively closed off any possible investigation through his quite direct instruction to the Employer not to contact him anymore. Nothing prohibited the Worker from appealing the decision to the Employer not to re hire him. He choose not to do so. It is unreasonable to blame the Employer for not conducting an investigation when it was the Worker who shut of all avenues of communication. Third Party Industrial Relations bodies have a long standing principle of not injecting themselves into a dispute process where a Party to the dispute has either failed to institute or complete the internal process first. In this case the Worker failed to even initiate a grievance internally and it is unreasonable for him to now seek for a Third party to evaluate a process that he did not commence.

With regard to whether or not the making of the Protected Disclosure impacted the decision t rehire the Worker, the evidence supports the Employers case that the decision to not reemploy the Worker was communicated to the Worker prior to the receipt of the Protected Disclosure by the Department of Rural and Community Development.

I find that the Worker has not shown any convincing evidence or made a convincing case to support his claim that the Employer acted unreasonably in not rehiring him. I find there are no grounds to recommend compensation to the Worker.

I find in favour of the Employer.

Disciplinary Procedures