Worker

Employer

Anonymised Parties

A Cleaning Operative

 A Cleaning Company

Representatives

  Appeared in Person

Emily Maverley , IBEC Executive

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 - 00002548

25/04/2024

This Disputes originated in the form of a submitted complaint to the WRC on 25 April 2024 by the Worker in this case.

The Worker presents as representing her own case and has submitted some loose documents which reflect inter party correspondence but has refrained from submitting a requested written outline of the Dispute for hearing purposes.

The Employer operates a large cleaning company and is represented by IBEC.

It is part and parcel of claims advanced under the Industrial Relations Act 1969, that once notified of the Dispute, the Employer is requested to respond to the WRC if they have an objection to the Dispute advancing to investigation?

In this case the Parties were notified of the acknowledged complaints and dispute and the Employer did not identify an objection to further investigation.

Had an objection been submitted by the Employer, then the WRC is prohibiting from advancing to investigation of the dispute and the matter either goes on to the Labour Court under Section 20(1) of the Industrial Relations Act 1969 for a full hearing or remains dormant in the hands of the worker.

In light of the background to this dispute and the reception of a grievance dated 16 April 2024, I would have thought it reasonable for the Employer to seek to engage with the Worker. I can appreciate that the Worker had declared a projected 6-month absence through sick leave around that time, but I am sure both Parties can appreciate that the Dispute has drifted on aimlessly while awaiting hearing at the WRC.

I accept that “we are where we are “but I must comment on the 2024 drift in this case, which must be owned by both parties.

The Employer submitted a detailed submission prehearing which rejected the dispute. The Employer relied on a prematurity in the referral to the WRC and a clear lack of exhaustion of local dispute resolution mechanism.

The Worker is representing herself and has claimed that in the context of her work as a contract cleaner that she has been bullied and harassed by Agents of her Employer.

She is a long-standing employee since 2008, is out of work through illness at present and does not feel comfortable in returning to work.

The Worker outlined that in the context of a cessation of a work placement in September 2023, that she was unfairly targeted and criticised by her line manager. The placement ended as the contract ceased. The Line Manager verbally abused and shouted at the Worker and left her without replacement work.

This required her to seek the intervention of higher management and after a number of weeks without replacement work, she agreed to work on a new site from 15 January 2024. She received part payment for the intervening period.

The Worker has had a number of episodes of sick leave and confirmed that she has not claimed illness benefit.

She recalled that the Respondent approached her on 13 March 2024 and placed a number of allegations regarding her work performance before her, which she disputed.

As the Worker was trying hard to manage challenging family matters, she felt unsupported by the Employer.

She detailed feeling unhappy and unwell as a result.

The Worker pointed to a letter of grievance submitted on 16 May 2024, which incorporated the topics of

1 August 2023, upset and distressed following a negative encounter with the line manager.

2 25 September 2023 the same line manager called her and chastised her for not sharing knowledge of cessation of contract.

3 No offer of replacement work post cessation on 29 September 2023. Request that the line manager desist from contacting her.

4 Attendance at meetings, but no resolution.

5 Not happy with new work placement

6 Illness from March 17, 2024, failure of management to respond to her queries.

7 No longer feeling safe or comfortable working for the Employer.

8 The worker sought full loss of earnings for the period of lay off.

On May 10, 2024, this grievance was acknowledged as a formal grievance.

The Employer sought medical clearance for her to participate in this grievance or failing that a Grievance Manager would be appointed, and the matter would be processed on her return to work.

At hearing, The Worker described at length that she felt a disconnect from her employer arising from the negative interaction with her former line manager. She expressed a fear of this individual.

She confirmed that she had tried to resolve the matter, but the grievance has not been investigated.

She had extended sick leave through illness during 2024 and disputes the Employers’ statements of concern raised regarding her performance at her new work placement.

The Worker confirmed that she had a second job then sought to recategorise it as summer work, only.

When requested to identify what might resolve this dispute? The Worker contended that she was interested in redundancy.  She contended that she had been medically advised that a return to work with the respondent was not advisable. She confirmed that she was not in receipt of either sick pay or illness benefit. She seemed doubtful of receiving the Grievance related documents relied on by the Employers.

The Employer Operates a large Managed Services Business and recognises that this dispute arose from the fall out from an unexpected cessation of a site contract in September 2023.

While the Employer has acknowledged a short fall in communications surrounding this, they were at all times unaware of the imminent closure. The employer had engaged with the worker to secure an alternative posting through the mechanism of being placed at risk of redundancy. She commenced a new posting in January 2024 on the same terms and conditions.

The Employer has rejected the claims that the Complainant was bullied or harassed.

Instead, the Employer contends that the Worker has not given them a chance to address the grievance lodged some 9 days before she referred her case to the WRC. The Worker has been on long term sick leave since March 2024. The Human Resource Manager had not been approached regarding the grievance.

 The Employers representative requested the Adjudicator reflect on her role and not usurp the legitimate authority invested in the employer to work with the worker to resolve matters outlined in the April 2024 grievance. She had not provided a medical clearance for her participation during sick leave.

Both Managers present addressed the hearing. In reflecting on the circumstances that followed the unexpected closure of the business where the worker had been based as contract cleaner, the employer was clear that the worker had been offered alternative work, which she rejected.

An engagement followed, where the worker was placed at risk of redundancy, but offered a number of alternatives as part of that process. She did not attend three of these scheduled meetings during November and December 2023.

It was the Employers case, that the worker had delayed in engaging and that delay resulted in offers of alternative placement being shared with other interested parties. She was paid for the majority of the time she was without work October – December 2023.

In response to the workers preferred option of redundancy, the Employer confirmed that there was no opportunity for redundancy as the workers role remained open and in existence for her.

The Employer remained keen to resolve the Dispute.

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

This is a most unusual Dispute that sadly has become protracted.

I would like to say at the outset that it is not in order that a grievance lodged  on 16 May 2024 should be then referred to the WRC some 9 days later.

I appreciate that workers and employer follow the trajectory of cases that pass through the WRC and are positively reported.

 However, the WRC is a creature of statute and in terms of Industrial Relations, is reserved for the final furlong of an unresolved dispute and not the starting line.

Parties known to each other in employment and who are equipped with the tools of resolution through Policies such as Grievance, Bullying and Harassment are obliged to travel some sort of journey together in pursuance of conflict resolution.

 It is the residue of that journey that is admissible for investigation under Section 13 of the Industrial Relations Act 1969.

I appreciate that there are instances where we receive embryonic disputes from workplaces without the wrap around presence of employment policies.

 However, this is not such an employment.

The SI 146/2000 Code of Practice on Grievance Progression is also of immediate benefit.

The Adjudication service is not an emergency response service, but rather a body that assesses a dispute that has already explored and/or trialled for  resolution by both Parties, at the very minimum.

In this case, the worker has not exhausted the local procedures for resolution of her conflicts. She has now identified Redundancy as her preferred resolution. She has gone from A-Z.

The Employer is keen to work with the Worker to secure her return to work.

From my own point of view, I suspect that she may have moved on in her working life. I say this as most people on sick leave claim illness benefit for subsistence alone, yet the worker has not claimed it.

In any event and in response to the inordinate amount of time lost in this case, I have found that the Worker has come to the WRC before her time . The Labour Court has been consistent in expecting completion of a trial of resolution of any dispute before the State considers a way forward.

Instead, I wish to send this Dispute back to the auspices  of the Company Human Resource Manager to plot a course for a mutually agreed resolution for all.

I would urge the Parties to reflect on the breadth of the employment policies as they appear to be uniform with a post Brexit UK and Northern Ireland, which some may find confusing in terms of applicable legislation and duty of care.

While I appreciate that the Parties have more work to do at base, speaking as a WRC Adjudicator, I have not found merit in this dispute at this time.

Premature recourse to Adjudication for unresolved grievance.