ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017860
Parties:
| Complainant | Respondent |
Anonymised Parties | A Supervisor | A Local Authority |
Representatives |
| LGMA |
Disputes:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00025203-001 | 23/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00023051-001 | 06/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00023056-001 | 06/11/2018 |
Date of Adjudication Hearing: 18/07/2019
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes.
I am satisfied that the two complaint references CA-00023051-001 and CA-00023056-001 are one in the same and dealing with one dispute.
Background:
The Worker has presented two disputes to the Workplace Relations Commission for Adjudication. The first relates to how an internal grievance procedure and appeal procedure were dealt with by the Employer. The second relates to how his Employer chose to fill a driver vacancy. The Employer said that it carried out the internal grievance procedures in accordance with its policy on both matters. |
Summary of Worker’s Case:
The following is a short summary of the Worker’s Case. CA-00025203-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 The Worker maintains that the Employer has failed to carry out a proper and full investigation into his claim that his confidence and personal information were discussed and disclosed by his line manager (Mr. A). The Worker said that he met with a work colleague (Mr. B) on the street who told him that he had overheard a discussion in the Employer’s staff canteen relating to him. In particular, that he was at that time out on stress leave and that his application for a shorter working year was refused. The Worker said that this is a breach of his personal information. The Worker said that he filed a grievance. However, the Investigator failed to take sufficient notice of his or Mr. B’s statements. He said that his personal information was not common knowledge and therefore the only way that this information was released in to the public domain was by Mr. A openly speaking about him. The Worker also said that the Employer’s Appeal process was not being adhered to. CA-000-23051-001 & CA-00023056-001- Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 The Worker raised an issue with regard to the Employer’s decision on how a position for a driver was going to be filled. He claims that the position holds many incentives such as weekend overtime work and other incentives. The Worker claims that the Employer wrongly advertised the position internally and by not advertising it to the whole workforce it has denied a promotional opportunity within the Employer’s workforce. He also said that by creating a position to a set location as this would do it has the effect of creating a post that has knock on significant financial gain for the position holder(s) with a knock-on effect to rates of pay, to pension and lump sum entitlements. The Worker said that the position should have been openly advertised to all within the Employer and not confined to just one section. The Worker said that he is not actually personally affected by the decision as he is working at a higher grade. |
Summary of Respondent’s Case:
The following is a short summary of the Employer’s Case. CA-00025203-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 The Employer said that the Worker made a formal complaint on 8 November 2018 about a breach of code of conduct and confidence in the Workplace. An investigation was carried out by a Senior Executive Officer where interviews were held will all concerned parties. A letter issued to the Worker from the Investigator on 14 December 2018. The outcome was that the Investigator was unable to establish on the balance of probabilities from all the information gathered that there was a breach of confidence by Mr. A. The Employer said that the Worker appealed the decision and Mr. C, Director of Service, was tasked with the investigation. Mr. C reviewed the investigation and report carried out by the Senior Executive Officer and deemed that the investigation was carried out correctly and the decision was deemed correct. The Worker appealed the decision to the WRC on 23 January 2019. The Employer said that the grievance was investigated in accordance with the grievance policy and the grievance process and appeal process were conducted properly and from the evidence adduced it was found that there was insufficient evidence there was a breach of a code of conduct by the Mr. A. CA-000-23051-001 & CA-00023056-001- Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 The Employer said that the complaint about how a position was to be filled came about following a retirement of a post holder and a decision to restructure of its resources in a particular service area. The Employer made a decision to restructure the services area and engaged with the two primary Trade Unions at the time. It said that its first proposal presented was rejected by the Trade Unions. A new proposal was drawn up and this was presented to the Trade Unions and was accepted. The Worker was in disagreement with this arrangement and said he would object to it. When the position was advertised, the Worker sent an email objecting to the advertisement. The Worker brought a grievance and the case was examined. A meeting was held with the Worker to identify the issues. It was agreed that the first advertisement of the position was not very clear and it would be re-advertised with clarity but within the existing group of employees and not extended to a wider group. The Worker appealed the decision and the appeal was re-examined by the Director of Service who upheld the previous decision. This decision was issued to the Worker on 6 January 2019. The Employer’s position is that a restructuring was agreed with the Trade Unions. The staff re-organisation within the affected area was discussed and agreed with the Trade unions as per normal industrial relations procedures. The Employer said that it was finding it difficult to understand the Worker’s position as he would not nor, could not benefit from the advertisement of the post as he held a superior position to the proposed advertised position. No one else had raised any issue with the matter. The Trade Unions are in agreement. The Employer said that it is a matter for each employer to determine how they fill positions once the nature and substance of the filling of the post does not contravene legislation. The Employer said it must use its resources in the most efficient and effective manner. The Employer said it engaged with the Worker throughout the grievance process although he has not provided any basis for his grievance other than holding a different personal opinion on the business of the Employer. The Employer raised concerns on the demand on its resources in responding to this complaint. |
Findings and Recommendations:
CA-00025203-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 The facts of the case have been presented above. There is disputed evidence in relation to the discussion and conversation had between the parties to the grievance. Mainly and in particular, what the Worker said he heard, what Mr. A said, and more importantly what he did not say. I also note a lack of certainty of Mr. B’s account of what he heard from Mr. A and what he said to the Worker. All of this doubt appears to cast a shadow of uncertainty on the real conversations had. That bears out in both the investigator’s report and the appeal officer’s report. I have reviewed all the documents presented to me and I hold the same opinion of the two previous decision makers. In relation to the process followed by the Employer, I take note of the Employer’s Grievance policy and procedure and I have seen that the Worker’s grievance was followed in line with that policy and procedure. I have not been presented with any matter that raises any concern. I recommend that the Worker accepts the decision. CA-000-23051-001 & CA-00023056-001- Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 The facts of the case have been presented above. I find it difficult to understand the genuine basis of the Worker’s dispute. I do not intend to get over legalistic in this, a dispute under the Industrial Relations Act. However, it has to be said, in that the matter for consideration, the Worker seems to lack the locus standi for taking this dispute in the first place. He is not at a loss. He could not make an application for the position should that it be advertised to the wider workforce rather than the limited internal workforce. I note that the Trade Unions were fully involved in this restructuring and I accept the Employer’s statement that in this instance it is for the Employer to determine how it fills positions once the nature and substance of the filling of the post does not contravene legislation. A smart employer will engage with its employees to offset any possible issue. As noted above the Employer did that throughout. I recommend that the Worker accepts that he might hold a different opinion to his employer in this instance but that the Employer has made its decision on the matter, which it is perfectly entitled to do. I recommend that the Worker accepts that decision. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I am satisfied that the Worker’s claims are not well-founded, and I recommend that the Worker accepts that Employer’s decision in both disputes. |
Dated: 13th November 2019
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Industrial Relations Acts – grievance – advertised position – not well founded. |