ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00002336
| Worker | Employer |
Anonymised Parties | A HGV Driver | A Delivery Service |
Representatives | None | Internal HR |
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 | IR - SC - 00002336 | 06/03/2024 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 20/06/2024
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/testimony of the parties and their witnesses and will also 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 the non-employment, or with the terms and conditions relating to or affecting the employment of any person.
I have confirmed that the Complainant herein is a Worker within the meaning of the Acts, and I have conducted an investigation into the said trade dispute as described in Section 13. It is noted that Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties 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.
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).
In effect, Section 13 reads where a trade dispute exists or is understood to exist and involves a worker or workers then a party to the dispute may refer it to the WRC. The WRC will not deal with disputes connected with
- rates of pay of a body of workers,
- the hours or times of work of a body of workers
- or the annual holidays of a body of workers.
The Adjudicator must avoid making a recommendation which has a collective impact on a body of workers.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. Industrial Relations disputes are primarily heard on the basis of factual and/or legal submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant evidence provided by the other side. The Specific Details of the Dispute are outlined in a workplace relations complaint form dated the 6th of March 2024. As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.
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Summary of Workers Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. This was only necessary for the Payment of Wages claim run in tandem. The Complainant additionally relied on the extensive submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. All documentation (with the exception of one letter from the Department of Social Protection) had been sent to the WRC in advance of the hearing and was known to the Respondent. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Complainant alleges that he has been the victim of bullying and harassment in the workplace. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the requirement to have exhausted the workplace mechanisms for bringing Grievance or complaint.
Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Employer’s Case:
The Respondent entity was represented by its Head of Employer Relations. The said Head attended together with two further witnesses from the HR Department. The Respondent had provided me with a written submissions dated the 19th of June 2024. I heard form one of the HR Managers in the course of the hearing. The evidence was given on Affirmation as there was also a claim under the Payment of Wages Act. The Respondent HR witness was not aware that the Complainant was unhappy with an intervention she had previously made with respect to one issue. This witness says that she had thought that she had dealt with the Complainant fairly and that the outcome had not been disputed. This witness was a stranger to the various different issues the Complainant brought to the Employer’s attention through the WRC workplace Relations Complaint Form. At no time prior to the issuing of this dispute had the Complainant triggered the in-house Grievance policy. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Conclusions:
I have carefully considered the positions of both parties herein.
It is quite clear that the complainant has endured a number of incidents wherein he perceives that his Line Management have treated him unfairly and in a manner which to his mind amounts to bullying and harassment. The Complainant had tried to reach out to a member of the Respondent HR team. I accept the evidence that the email address used by the Complainant was incorrect and am satisfied that the Respondent was therefore not put on notice of any issues the Complainant was having in the workplace from in and around May and June and July of 2023.
I do accept that a later incident where in the Complainant was chastised by a manager for not wearing high a Viz Jacket on the forecourt/platform was notified to the witness who came to give evidence for the Respondent. I understand that the witness took on board that the Complainant was upset with the way in which he had been treated and sought to intervene to sort this matter out at a local level. The witness says she had thought the matter was sorted.
The Complainant did not question the outcome and more importantly did not raise a formal Grievance.
I am satisfied that this is a workplace wherein a comprehensive Grievance Procedure has been adopted and has been regularly availed of. I cannot accept (and nor has it been suggested) that the Complainant is ignorant of the existence of such a policy. I am aware that this is a unionised workplace though for reasons only the Complainant can know, the Complainant has not sought Union assistance for guidance on how to trigger a Grievance Procedure.
In short, it is not appropriate to bring a preliminary Grievance before the WRC for a full investigation. It is not a good or practical use of the WRC time and resource. The WRC function when it comes to incidents of bullying and harassment is to oversee how the Employer has dealt with such allegations. However the Employer has to be given the opportunity to deal with any incidents of bullying and harassment which have arisen and which have caused distress to a co-employee and that opportunity must be given before the matter is escalated to the WRC.
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Recommendation:
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
IR - SC - 00002336
I am satisfied that the Complainant has not been the victim of any failings on the part of the Employer herein. The Complainant came to the WRC without having exhausted the processes readily available to him in the workplace.
I recommend that the Complainant take the time to consider the workplace Grievance Procedure and determine whether or not there are any outstanding issues which need to be brought to the attention of his Employer.
Dated: 13th of August 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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