Worker

Employer

Anonymised Parties

Health Care Assistant

Health Service

Representatives

Mr. Tom Fitzgerald, Unite the Union

Self-Represented

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 - 00001946

06/11/2023

The Worker is a long-standing employee of the Employer. On 6th November 2023, the Worker referred the present dispute to the Commission. Herein, she alleged that she was subjected to unfair and unwarranted criticism at the hands of her manager, and that the same had a detrimental effect on her well-being.

Following the Employer’s positive election regarding the dispute, the matter proceeded to hearing. This hearing was convened for, and finalised on, 12th April 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued extensive submissions in advance of the hearing, these submissions were expanded upon and contested by the opposing side in the course of the hearing. This hearing was heard in parallel to that bearing reference number IR-SC-00001947. While these disputes involved two different Workers, it was accepted at the outset that the factual matrix was identical between the two matters and one submission was ready into the record in relation to both matters. As a consequence of the foregoing, the same recommendation will issue in relation to both sets of matters.

By submission, the Worker stated that on 24th November 2020, she and a colleague were asked to attend a meeting with a clinical nurse manager. During this meeting, the clinical nurse manager informed the Worker and her colleague that a complaint had been received from a member of the public in relation to the services provided by the ward. In addition to the foregoing, the clinical nurse manager continued to raise further issues regarding alleged complaints received from other staff members. The Worker’s utilisation of the Employer’s sick leave policy was also discussed at this meeting. 

Following the Worker dissatisfaction with the conduct of their line manager during this meeting, she raised an internal grievance in accordance with the Employer’s relevant policies. A meeting in relation to the same was duly convened for 11th June 2021. Throughout this process, the Worker did not have sight of the substance of the complaint raised by the member of public, something that caused her a great deal of concern. A following meeting in relation to the matter was convened for 14th October 2021, at this meeting the Worker and her colleague sought a fulsome apology from their line manager in relation to her conduct during the meeting the previous year.

In January 2022, given that no material progress had been made in relation to this matter, the Worker, with the assistance of her union representative, referred a complaint to the conciliation services of the WRC. As no resolution was achieved during this process, the matter was referred to the Labour Court. Unfortunately, due to an internal error the Worker did not attend this meeting and again, no resolution was reached.

While this external process was underway, the Worker received a written version of the complaint, and subsequently, an apology from the relevant line manager.

Following receipt of the same, the Worker referred a complaint under the present Act to the WRC on 27th September 2022. In due course, a recommendation issued from both the Commission and the Labour Court. The substance of the Court’s recommendation was that the parties were to engage in mediation in an effort to resolve the difficulties experienced in the course of their employment. The Workers engaged with this process in good faith, however the same did not resolve the difficulties experienced. Given that the Worker continued to experience ongoing adverse treatment, they elected to refer the present dispute in an effort to finalise what had now become a long running issue.

By submission, the Worker requested that she receive a fulsome, unequivocal apology from their line manager in respect to the treatment they received during the meeting in 2020. The Worker further requested a payment of compensation in respect to the adverse treatment she endured at the hands of the Employer.

In response to the Employer’s submission, the Worker’s representative stated that doctrine of Res Judicia does not apply to disputes under the Industrial Relations Acts. In this regard, he submitted that the Worker, and her colleague, were seeking a resolution to this long running affair and had sought the assistance of the present body to do so.

By response, the Employer broadly accepted the sequence of events described by the Worker. In this regard, they accepted that the Worker had raised a grievance in accordance with the Employer’s internal procedures, that the matter had progressed in line with same and concluded with a finding in favour of the Worker. Following the same the line manager involved issued an apology to the Workers in question. In this regard, the Employer submitted that the minutes of the relevant meeting record that the Worker in question accepted the apology as offer and that, in their view, this represented a satisfactory conclusion to the issue. In this regard, the Employer referred to a further meeting on 14th October 2021, where the actions and resolutions from the previous meeting were examined. In this regard, the Employer opened a section of the same where the parties indicated that they were now working well together.

Notwithstanding the foregoing, the Employer submitted that the dispute was referred to this forum and the Labour on two prior occasions. On the first such occasion, the dispute was referred as a conciliation conference. Despite the efforts of the parties, this conference did not resolve these matters. Following the same, the matter was previously refereed to this forum and appealed to the Labour Court, with mediation being recommended as a manner by which the dispute may be resolved. While the Employer was anxious to engage in this process, the Worker unfortunately elected to withdraw from the same and to refer the present dispute.

Having regard to the foregoing, the Employer submitted that the trade dispute had already been investigated, that a recommendation had issued and that they had sought to engage with the same. In such circumstances they submitted that no further action should be taken in relation to this dispute and that the same should be deemed to be closed.

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

The present issue represents the latest development in a long running dispute between the Worker and her Employer. The issue at the heart of the matter is the conduct of the Worker’s line manager during a meeting in November 2020. The subsequent complaint arising from the same was processed through the Employer’s internal processes, with a finding issueing in favour of the Worker. While the Worker was no doubt pleased with this outcome, she remained concerned that the apology issued by her line manager was not sufficient and that she continued to be subjected to adverse treatment.

Unusually, this dispute has already been considered in this forum, and by the Labour Court on appeal. In this regard, it is noted that the outcome recommended by the Court provided that,

“The trade dispute arises from a team meeting attended by the Worker and her manager. What transpired at the meeting caused upset to the Worker and a colleague, both of whom have made complaints under the Industrial Relations Act. The manager has apologised on a number of occasions for the upset caused.

It is difficult to see what assistance the Court can offer in the circumstances but the Court is happy to note that, at the hearing, the parties reached agreement to the principle of the matter concerned being dealt with through mediation and to the appointment of an external mediator, to be agreed by the parties.

The Court is prepared to recommend that the parties pursue a resolution in the manner agreed. In doing so, the Court made clear to the parties that it has a clear expectation that the matter will be resolved through mediation and that it will not be referred back to the Court in the future.”

By submission, the Employer’s representative suggested that the in consideration of the above passage, the present dispute had already been adjudicated upon, and that the doctrine or res judicia should apply.

In the matter of Mullally v Labour Court [2015] IEHC 351, Noonan J. held that in exercising their powers under the Industrial Relations Acts, the Labour Court,

“…is not finally determining any issues of law or fact…Indeed the applicants are only bound because they undertook in advance of the investigation to accept the recommendation as a prerequisite to the Labour Court embarking on an investigation under the section. Such an investigation is not an adjudicative process and creates no res judicata.”

Having regard to the foregoing, it is apparent that the doctrine of res judicata is a legal principle, usually adopted to estop a party from re-litigating a matter that has been previously decided. Trade disputes such as the present matter are not justiciable matters and such purely legal principles have no application to their investigation.

While it is apparent that the Worker is not estopped from referring the present dispute, the fact remains that the Labour Court, the appellate body to this forum, issued a clear and unambiguous recommendation regarding the substance of the present dispute. In this regard, it is apparent that the Worker raised a valid grievance, that this grievance was investigated in accordance with the Employer’s internal policies and that an outcome had been achieved in relation to the same. As observed by the Court in the recommendation listed above, it is difficult to envision what practical outcome might assist the Worker in concluding the matter to her satisfaction. In particular, it is inappropriate, impractical and perhaps counter-productive to direct the Worker’s line manager to issue an apology that meets the Worker’s satisfaction. This is particularly so when the conduct in question occurred almost four years ago and had been the subject of numerous formal meetings thereafter. While the Worker has outlined some issues that have occurred since the referral of her initial grievance, these have not progressed through the Employer’s internal processes and as such it would be inappropriate to issue a recommendation in relation to the same.

In this regard, I recommend that the parties meet within two weeks of the date below and re-examine the prospect of engaging a third-party mediator to assist with the inter-personal difficulties the Worker referenced in her submission. The appointment of said mediator should be agreed between the parties prior to engaging in this process. 

Res Judicata, Trade Dispute, Mediation