ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000244
| Worker | Employer |
Anonymised Parties | A Worker | A Local Authority |
Representatives | The claimant represented himself | Amanda Kane Local Government Management Agency (LGMA) |
Dispute(s):
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 - 00000244 | 29/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00000245 | 29/04/2022 |
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Date of Hearing:
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Following the first hearing , the WRC sought clarification on a number of points from the respondent on the 13th.Dec. 2022 – the text of the correspondence referenced a request for clarity “ from the respondent in relation to a number of matters raised at the hearing”.In accordance with natural justice and given that the claimant was unrepresented at the hearing and had not received the respondent’s submission until the afternoon of the 8th.Dec. 2022 , I will be giving him an opportunity to offer any observations or comments on your reply that he wished to be considered …”
The respondent replied by return and further exchanges between the parties ensued – a further hearing took place on the 10th.Sept. 2023 – further documents were sought and submitted to the WRC and exchanged between the parties with final correspondence received in August 2024.
Background:
The claimant was employed as a General Operative with the respondent from the 6th.August 2019 – 31st.December 2021 when he submits he was unfairly dismissed .The claimant submitted that he made a formal grievance to the Council on the 1st.December 2021 following receipt of notice of termination of his contract. He was aggrieved with the manner in which his grievances were processed and alleged that he was hired under false pretenses . He asserted that his concerns regarding health and safety were ignored and asserted that the Council had failed to observe the Last in First out principle when he was let go in December 2021. According to the claimant when he was let go there were 2 additional GO positions approved for the following year. The claimant complained that he was penalized for invoking entitlements under the Protection of Employees (Fixed Term Work ) Act 2003 . He submitted that the respondent failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and that the employer failed to offer him a contract of indefinite duration. The claimant further alleged that the Council were in breach of the Act for failing to inform him of opportunities for permanent employment and appropriate training.He further submitted that he was penalized for making a complaint under the Safety , Health & Welfare at Work Act , 2005.
The respondent denied any breaches of the legislation referenced by the claimant and submitted that the complaints were without foundation.
The claimant lodged 2 complaints under the Industrial Relations Acts – he did not particularise the complaints.
He ticked “ Complaint in relation to disciplinary sanctions up to and including dismissal “ and” Bullying and Harassment Procedures.” |
Summary of Workers Case:
CA- 000505-002
At the first hearing , when the claimant was asked to clarify these complaints the claimant said that his overtime was being curtailed because he refused to do tradesman’s work. He also referred to being sent to do patching duties on his own and referenced being issued with reprimands in the context of his refusal to take on tradesman’s duties when he was not being remunerated for that type of work. CA-00050202-003 In his complaint form the claimant ticked Bullying and Harassment procedures but the claimant did not detail specific complaints other than those already considered under his statutory complaints. The claimant’s original complaint included the Council’s Grievance Procedure which specifically referenced separate policies for harassment and Dignity at Work complaints. There is no evidence of the claimant invoking the Dignity at Work Procedure or seeking to particularise a complaint under that procedure.
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Summary of Employer’s Case:
CA- 000505-002 The local authority submitted that no disciplinary action had been taken against the claimant and he had not provided any detail in relation to his complaint. It was submitted that the claimant’s contract ceased due to the return of the substantive post holder .The Council Submitted the complaint was misconceived and requested that the complaint be dismissed .It was submitted that the claimant did submit a grievance and the Council had reviewed it and responded in detail to same.It was submitted that the claimant presented no evidence to corroborate his allegations. CA-00050202-003 The Council submitted that the claimant provided no detail in relation to the complaints referred under Industrial Relations legislation .It was advanced that it was unfair for the employer to be expected to defend the claim when such a generic complaint was submitted. It was submitted that the claimant had made no complaint in relation to bullying and harassment while employed by the Council and that he failed to exhaust the internal mechanisms available to him under the Council’s Dignity at Work policy. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. It appears the claimant conflated a number of alleged breaches of employment rights legislation with his concerns regarding health and safety matters.At the outset he focused on alleged reprimands for not doing tradesman ’s work and moved on to make allegations of penalisation under the Protection of Employees( Fixed Term Work) Act 2003 and the Safety , Health & Welfare at Work Act.2005.The claimant further alleged that the Council were in breach of their own grievance policy by not meeting with him to discuss the termination of his employment and his other complaints.While I acknowledge that the matters could perhaps have been settled if the Council met with him , there is no requirement under the current procedure to have a meeting.This is somewhat at odds with the provisions the policy makes for an aggrieved worker being accompanied by a representative or a trade union official during the process but there is no basis for arguing that the Council breached their own grievance procedure.The claimant did confirm in the course of the second hearing that he did not pursue any complaint regarding the dispute about taking on tradesman’s duties.
With respect to complaint CA- 000505-002 , I find the claimant did not provide evidence of discriminatory treatment with respect to the allocation of overtime when the factors invoked by the Council of the claimant’s inability to work on Saturdays and late evenings as well as his unavailability owing to annual/sick leave are compared with the records submitted of the entirety of his colleagues .While I acknowledge the claimant’s concerns regarding patchworking alone , I find no evidence was advanced to support his contention that this was in breach of the respondent’s Health & Safety practises and/or he was assigned to this work because of his refusal to do tradesman’s work. Accordingly I do not uphold the complaint. With respect to complaint CA-00050202-003, the claimant did not make a complaint under the employer’s Bullying and Harassment procedures or set out the detail of any such complaint and consequently I find against the claimant and do not uphold his complaint. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
On the basis of the foregoing conclusions , I recommend against the claimant with respect to both elements of the complaint.
Dated: 09th of September 2024
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
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