Worker

Employer

Anonymised Parties

A Business Development Executive

A Business Services Company.

Representatives

Self-Represented

Company Managers

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 - 00002597

03/05/2024

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

IR - SC - 00002598

03/05/2024

The Disputes centred firstly on allegations from the Worker that he was compelled to work to very unrealistic Work Targets and was threatened with Disciplinary action if he failed to achieve same. The Bullying and Harassment policies of the Employer were not workable for an Employee. Detailed examples of failure in this regard were given.

Secondly it was alleged by the Worker that the employees were instructed, following the removal of their own waste Skip to “covertly” dispose of waste materials in the Waste Skips of other Companies

 It was stated by the Worker that the employment as a Business Development Executive began on the 12th February 2019 and continues.

The rate of pay was monthly at a gross of €2,166 for a stated average of a 47-hour week. The weekly hours figure was contested by the Employer.

The Responder Employer is a large Business Support Organisation in the Retail Sector.

1:1         IR- SC – 00002597 – General Disputes

The Worker stated in his Oral testimony and copy written materials that he was constantly given unrealistic work targets and was bullied and harassed by his Manager (Mr Z) to achieve these. Much time was devoted during the Hearing to Worker allegations of bullying and Harassment by Manager, Mr Z. This Regional manager had, it was alleged, been quite aggressive towards the Worker and very dismissive of his excessive Workload complaints. The Worker was subjected to constant harassment regarding his work practices and his difficulties with the internal Work tracking systems. The work environment became Unsafe and effectively Toxic.

In his Oral testimony the Worker outlined how he had fared in the initial work performance  investigation. He had requested that an Independent Outside investigator be appointed as the internal Process was hopelessly unfair as the investigating manager was a Company Employee who would always take the company line irrespective of any evidence.

Furthermore, a new Manager had been appointed at this time who it was alleged was not familiar with the daily routines and was not physically strong enough to handle some of the more physical lifting of products etc involved. The overwork and Stress became so severe that the Worker had to go on Medical/Sick Leave from the 22nd December 2023. He was diagnosed with Work related Stress. The Employer sent him to Cognate, the Medical referral OH Company, in late January of 2024 who corroborated the view of his own doctor in December 2023. The Worker is now on unpaid Sick leave pending the resolution of this Dispute.

Considerable copy e mails, from this time period, with the then HR manager, Mr A, were exhibited by the Worker. The Worker stated in his Oral testimony that he was very unhappy with a proposed Bullying & Harassment Investigation that was proposed by the Employer HR Manager, effectively Mr A. The Worker view was that it would be Internal, and Company Managers would never be independent enough to give a True finding. Considerable copy e mail traffic was exhibited.

In addition, he was unfairly denied his 2023 Christmas/end of Year bonus.

The Worker stated in his Oral testimony that he was now seeking that the Employer reinstate his Annual leave days, Rescind the withdrawal of the of 2023 Bonus and pay same, address the issue of his lost wages since 2023 and pay him a Redundancy Lump sum. He had no desire to return to a Company that had, he alleged, treated him so badly.

1:2        IR- SC – 00002598 – Waste Disposal Dispute

The Worker stated that the In-House Company Waste disposal Facility – a Skip at the Employer HQ Depot – was removed and all Workers instructed to use Customer Waste Disposal facilities at their sites instead. No question was raised about securing prior Customer approvals to this practice.

This form of Waste Disposal by the Employer was illegal and breaches all Environmental regulations as well as being a source of considerable possible conflict with customers.

The Employer was represented by two Senior Executives, Ms Fx and Ms Fy. A detailed Written submission was provided, and extensive Oral testimony was given.

2:1         IR- SC – 00002597 – General Disputes

The Worker has been employed on his current contract since 4th January 2022. He had previously been on a fixed term contract for most of 2019. His role is the promotion, sale and merchandising of major customer Product lines (in this case mostly Diageo/Guinness products) in all major Retail outlets/Supermarkets etc. He is not Office based but works “In the Field”.

The background to this dispute is that by late 2023 the Worker appeared to be missing his targets and not properly recording his site visits and his work locations. The Employer initiated a Performance Review meeting for the 18th December 2023. This was moved, at the Workers request to the 20th December 2023, but on this date the Worker failed to appear.  The Worker went on Sick Leave from the 22nd December 2023. Further medical certs were received extending the Sick Absence period. The Employer then organised an Occupational Health review on the 23rd January with an external OH provider. This review indicated that while the Worker was still certified as unfit, he was capable of participating in Employer investigation/HR procedures.

A major investigation meeting with a Senior Manager took place on the 1st February 2024 via MS Teams. Major Employer issues were raised in regard to the proper Computer/Remote recording of calls by the Worker. He accepted that he knew how to properly use the Employer Systems but preferred to us his own iPhone instead. The Employer raised issues with the Worker’s adherence to call schedules and agreed locations. The Non Recording of his activities resulted in the Worker missing his Targets and Bonus for the last Quarter of the Year. The targets were achieved in the first three quarters of 2023. The Employer pointed out that this indicated that the targets were quite achievable once properly recorded. The Investigation ended and no Disciplinary actions were recommended by the Employer Senior Manager. The Employer stated quite clearly that there was nothing in this that would qualify as a “Trade Dispute” as provided for in the Industrial Relations   Act,1969.

Regarding the Bullying and Harassment allegations the Employer representatives basically reiterated the e mail views of HR Manager, Mr A. (By the date of the Hearing he was no longer with the Employer and was not available to give evidence.) Company procedures for B&H, as set out in the Employee Handbook, were available and had not been availed of by the Worker. The long running correspondence with Mr A of HR clearly showed that he was making every possible effort to get the Worker to engage in processes.

The copy e mails from Mr A of HR repeatedly stated that redundancy was not an option, despite numerous requests from the Worker, and that his work position was still open to him. The other issues regarding Annual leave, Outstanding Wages and Bonus Payments were either subject to Statue Law or were governed by agreed in house practices.

Extensive e mail traffic (regarding proposed investigations and B&H allegations against Manager Mr Z,) with Mr A had taken place. The Worker was making many varied assertions and allegations against the Company.

The Employer Representatives indicated the Employer had been extremely patient with the Worker.

The Worker was still on Sick leave from December 2023, albeit without certificates since the Spring of 2024 and was now regarded as being on Unapproved Absence, almost a year later.

In summary he has not made any specific case other than wide ranging allegations that are without proper evidence. He refused to avail of the Procedures suggested by Mr A from HR. From his opening comments he clearly did not wish to come back to the Employer and was making very generalised broad-brush allegations in support, it appears of a Severance /Redundancy package that has no legal basis as his job remains open.

The Employer view in final summary, taking all things into view, was that the Worker has no proper case for consideration under the Industrial Relations Act,1969.

2:2    IR-SC – 00002598 – Waste Disposal Dispute

The Employer  failed to understand this Dispute. No Directives or Instruction as described by the Worker were ever issued regarding the use of Third Party/Customer waste facilities. The Employer has proper waste disposal facilities at its Depot in keeping with relevant legislation. In the time of employment of the Worker he never raised any issue of this nature. Wate Disposal is not a Trade Dispute for the WRC.

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

It is important to note that this Dispute is under the Industrial Relations Act,1969. The Adjudicator is charged with making a non-binding Recommendation as to how he or she feels the Dispute can be resolved to the long-term satisfaction of the Parties involved.

This allows a good degree of freedom to the Adjudicator unlike other more legally binding cases where defined Interest and much Legal precedents are involved such as the Unfair Dismissals Act of 1977.

An Industrial Relations Act,1969 case is based on the Industrial Relations facts of the case as seen by the Adjudicator, on the day, without any unnecessary regard to Legal precedents from other cases.

This is the basis that the Adjudicator has adopted in this case.

3:1        IR- SC – 00002597 – General Disputes

At the outset of the oral Hearing the Worker was frank in his declaration that he was seeking four areas “claims” to be addressed in his favour

·        Annua Leave to be reinstated/allowed for the period of his absence

·        His 2023 Christmas Bonus to be paid

·        Payment of wages from the ending of paid Sick leave to a current date.

·        A Severance Lump Sum to allow him to “Go on his way” as he did not want to return to the Employer. This was based on his perceived very negative experiences of his Manager, Mr Z and HR Manager Mr A.

The Employer, quite rightly, in the Adjudicator’s view had serious issues with all four of these items.

The Employer’s written submission and cogent Oral Testimony from both Managers made it plain that these “claims” were realistically without any firm basis. Internal Company Procedures had not been fully utilised, and the “claims” would not stand up to a rigorous examination. The case must fail in their view.

From an Industrial Relations point of view this would then give rise to a scenario where the Worker, still on Sick Absence after one year, would have no option but to return to work, in a most probable very disgruntled state or simply resign and walk away. However, an Unfair Dismissals claim, under the Unfair Dismissal Act,1977 would seem inevitable with further Legal expenditure from the Employer and would consume valuable Management time in mounting a proper defence. This would prolong the issue well into Years 2025 at least and possibly 2026.

The Adjudicator considered this issue based on WRC Industrial Relations experience.

Pragmatism is a much-underrated virtue in Industrial Relations settlements.

According the recommendation below will reflect this view.

3:2      IR - SC – 00002598 – Waste Disposal issues

This is not a proper Trade Dispute as set out in the Industrial Relations Act ,1969. There are statutory bodies in this area to address Waste issues – the Environmental Protection Agency, comes to mind.

Accordingly, no recommendation will be made on this issue as it is deemed to be outside of the jurisdiction of the Workplace Relations Commission.

Severance Claim, B & H Procedures, Waste Disposal