ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: ADJ-00047038

Parties:

	Worker	Employer
Anonymised Parties	A Special Needs Assistant	An Education Body

Representatives

Tom Creedon

Mary Paula Guinness, B.L.

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	IR-SC-00007681	10/03/2019

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Date of Hearing: 16/08/2022 & 09/05/2023

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following 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 information relevant to the dispute.

Background:

The worker was a Special Needs Assistant (SNA) employed from 2005 to 2018. She alleges that she was bullied & harassed by the Principal during the period 2013 to 2018.

Summary of Workers Case:

The worker refers a case that she was bullied and harassed by the former Principal at the school in which she worked and which she said she brought to the attention of all the relevant bodies. She contends that this harassment was then reflected in her treatment by other colleagues. She said it manifested itself in the form of being shouted at by the Principal in front of colleagues, parents and students and being shouted down in meetings when she tried to raise a question. She said she was followed around even to the bathroom and was singled out for special treatment.

Summary of Employer’s Case:

The employer submits this claim is misconceived and/or vexatious and are not within the scope of the WRC’s jurisdiction pursuant to section 13 of the 1969 Act which provides: “…

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a Rights Commissioner.

It is submitted that the complaints are statute barred and the matters complained of were not raised by the complainant at local level pursuant to the employer’s bullying prevention policy or any of its procedure. The employer submits that the complaint is not a trade dispute as a dispute could not have existed at the time the complaint was made as the complainant had resigned her position and could not therefore be deemed a ‘worker’.

The respondent refutes all allegations made against the Principal and submits that while on occasion for safety or monitoring hours reasons, the Principal may have had to engage the employee regarding certain matters. However, this did not amount to bullying or harassment.

The respondent refers to the Supreme Court decision of Ruffley v Board of Management at Saint Anne’s School [2017] IESC 33. In that case, Charleton J. distinguishes normal management interactions from bullying as follows:

“An employer is entitled to expect ordinary robustness from its employees… Correction and instruction are necessary for the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary.” He also stated “the test for bullying is of necessity to be set very high”.

O’Donnell J states at paragraph 66 of his judgement:

“… it seems to me that the requirement of conduct undermining dignity at work is a separate distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.”

Conclusions:

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

In relation to the employer’s submission that the worker’s complaints are not within the scope of the WRC’s jurisdiction pursuant to section 13 of the 1969 Act and are statute barred, I find that, with the exception of a provision in the amended Act 1990, relating to retired workers, the provisions of the Industrial Relations Act 1969 do not impose a time limit on disputes referred.

The worker makes some serious allegations against the former Principal which have not been referred internally in the employment as a formal grievance or for internal investigation. It is noted that the worker in this case advised the Principal that should certain alleged behaviour continue, she would have to lodge a grievance. However, she did not lodge a formal grievance or seek an investigation which would give both parties the opportunity to be heard. The whole matter of what transpired in the employment is obviously of major import to the worker in this case and she was anxious to bring forward for consideration a number of affidavits and complaints made by other workers or former workers in the employment. I find this was inappropriate and did not take them into consideration. The matters raised in the worker’s submission relate in large part to conditions of employment of SNAs. The Act is designed to deal with individual disputes and not a body of workers. I again note that no formal grievance or investigation took place and in the absence of same, and at this remove, I cannot make a recommendation on a dispute that has been in existence now for many years and has not been the subject of proper investigation before coming to the WRC.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. As this matter has not been referred internally in the employment and has not been processed through fair and open procedures, I make no recommendation in relation to this dispute.

Dated: 10 August 2023

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Key Words:

Industrial Relations, eligibility to avail of the Act, bullying & harassment. No internal procedures.