ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00034201
Parties:
| Worker | Employer |
Anonymised Parties | A General Operative | A Local Authority |
Representatives | Arek Muszynski SIPTU | Keith Irvine LGMA |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | 26/02/2021 |
Date of Adjudication Hearing: 06/07/2021
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.
Background:
The Worker commenced his employment with the Employer on 1st October 2018 on a fixed-term contract initially for duration of 12 months. This contract was renewed on 1st October 2019 for another 12 months. He referred this dispute to the Director General of the WRC on 26th February 2021 alleging “Unfair work practices”. |
Summary of Worker’s Case:
The Worker submitted his claim to the Director General of the WRC on 26th February 2021 alleging “Unfair work practices”. At the adjudication hearing, SIPTU on behalf of the Worker argued that the Worker was dismissed on 30th September 2020, however no Minimum Notice, as per the act, was paid to him. SIPTU sought two weeks’ notice to be paid to the Complainant. At the adjudication hearing SIPTU did not dispute that the Worker was a fixed-term employee. |
Summary of Employer’s Case:
The Employer raised a preliminary issue in relation to the dispute under section 13 of the Industrial Relations Act 1969. The Employer noted that it has a Grievance Policy in place for employees to raise any issues and have them investigated and resolved where possible. The Employer argued that in relation to this dispute the Worker has provided no details what the complaint is and has also never utilised the Grievance procedures to attempt to resolve any issues. The Employer asserted that this dispute should not be heard by the Adjudicator as the Worker had not utilised or exhausted internal dispute resolution procedures before the referral to the WRC Adjudication Services and that the Employer had no information in relation to what the issues in this case may be. The Employer also pointed out that it is not in a position to provide any submission in relation to this complaint or to respond due to the lack of information in relation to this complaint. The Employer argued that the dispute should be dismissed accordingly. In response to SIPTU submission asserting that the Worker was not given minimum notice, the Employer submitted that the Worker was a fixed-term employee and therefore he had a one year notice of the expiry of his contract. |
Findings and Conclusions:
The Worker submitted his dispute to the Director General of the WRC on 26th February 2021. In the referral form, the Worker alleged “unfair work practices”. No further details were given at the time and no specifics in respect of this assertion were provided. At the hearing, SIPTU on behalf of the Worker contended that the dispute relates to the Employer’s failure to give the Worker minimum notice prior to the termination of his employment. The SIPTU representative acknowledged that he is familiar with the provisions of the Minimum Notice and Terms of Employment Act, 1973. However, it was unclear as to why the claim was not referred under that legislation. SIPTU also acknowledged that the Worker was employed under a fixed-term contract, which by its nature comes to an end by mutual consent when the fixed term is over. It is regrettable that the dispute referral form contained only a very vague assertion of “unfair work practices”. This clearly disadvantaged the Employer and prevented the Employer from meaningfully preparing for the adjudication hearing. The Employer argued that the Worker did not initiate and exhaust internal procedure. At the hearing, the HR Manager outlined the exchange of correspondence between SIPTU and the Employer and confirmed that no grievance was raised as per the Employer’s procedure. SIPTU initially maintained that a grievance was raised on behalf of the Worker. Following a short adjournment SIPTU confirmed that while the Union sought a meeting with the Employer in respect of various matters at the time, it has no evidence that a grievance had ever been raised in respect of the minimum notice. In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. |
Recommendation (strictly pertaining only to the facts of this Dispute):
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having considered the submissions of both parties to this dispute I do not recommend in favour of the Worker. |
Dated: 7th September 2021
Workplace Relations Commission Adjudication Officer:
Key Words:
Industrial Relations – minimum notice – grievance not utilised-fixed term contract |