Worker

Employer

Anonymised Parties

An Operations Manager

A Recruitment Company

Representatives

Peninsula Business Services

Act

Complaint/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 - 00001959

06/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001960

06/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00067974-001

06/09/2023

The complainant commenced his employment with the respondent on August 4th, 2023, as the Operations Manager/ Business Development Manager.

The complainant set out his case as follows.

Shortly after he commenced, he was asked to request a departing colleague to leave before the expiry of her notice period. He did so. He says that he was also asked to make an application for work permits that would have been in breach of the relevant regulations. When he refused to do this a colleague did it.

He became aware that his private telephone conversations were being listened to and he also was told that a disparaging reference had been made about him related to his sexuality. This included a suggestion that he was married which was not true. It is this incident which gives rise to the complaint under the Equality Act.

He confirmed that he did not hear the alleged comments, but they were reported to him by a third party

He had also made various requests for improvements in health and safety facilities and raised the issue of his phone calls being listened to as a GDPR issue.

He decided to raise this with the respondent Director. He says that in the course of this conversation the Director tole him ‘to leave’ or go to the WRC’. Following this exchange he resigned later that same day. He confirmed that he did not raise a formal grievance other than by means of the conversation with the respondent on September 29th.

The respondent Director stated that at no stage did he terminate the complainant‘s employment at their meeting on September 29th and also denies that he used abusive language.

In respect of the application for the work permit he stated that he had twenty years’ experience in submitting work permit applications and understood the requirements.

He dd not ask the complainant to break the rules not did he listen to the complainant’s telephone conversations.

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

There is a very stark conflict in the evidence in this case.  The respondent basically contradicts everything asserted by the complainant.

He denied listening in to the complainant’s calls, although there was no satisfactory explanation as to how he came to be aware of the contents of a call made by the complainant.

He flatly denies asking the complainant to make the application in breach of the regulations, and he denies using language to the complainant, the import of which was that he was terminating his employment.

In relation to the allegation regarding disparaging comments about the complainant‘s sexuality, and it appears to cover all the headings raised by the complainant of bullying, intimidation and harassment, the complainant was at the very conspicuous disadvantage of not having heard the remarks himself nor of offering any evidence from anyone who did.

The respondent denies having made them.

Turning to the complaint of constructive unfair dismissal, the issue turns on the interpretation of the remarks attributed to the respondent where it is alleged, he said, ‘leave or go to the WRC’, or something to that effect.

There is some possible ambiguity in these remarks, although not very much, and in general the respondent’s simple denial of all the complainant’s assertions lacked credibility.

However, the complainant submitted his resignation later that same day, and while he included a robust, even angry account of his various complaints, the fact that he did so in a letter of resignation means that the internal grievance mechanisms were not triggered, much less exhausted.

To ground a case of constructive dismissal it is a particular requirement to have done both; the workplace grievance machinery must be engaged and allowed to conclude before a reference is made to the WRC.

Indeed, to invoke the jurisdiction of the Industrial Relations Act on any issue it is necessary to have done so. The reason for this is to be found in the name of the statute itself; the Industrial Relations Act; its purpose is to provide for a remedy when the workplace procedures have been exhausted, not to replace them

In the case of Gregory Geoghegan t/a TAPS v A Worker (INT 1014)the Labour Court held

The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.

This case was cited in A Worker v An Employer (ADJ 40376)in which the Adjudication Officer held:

It is well established that, before submitting a grievance about any matter to the WRC, an employee must exhaust the internal procedures at their workplace.

And the Adjudicator proceeded to repeat the reference above from Geoghegan. This captures the established and long standing position of the WRC Adjudication service and its predecessor tribunals.

Therefore, while this principle applies particularly to a complaint of constructive unfair dismissal it also applies to the other complaints relating to the request to make an allegedly fraudulent application for work permits and the alleged breach of privacy regarding the telephone conversations.

The complaints are not upheld for these reasons.

Jurisdiction, obligation to exhaust workplace procedures.