Worker

Employer

Anonymised Parties

A Staff officer

A County Council

Representatives

Eddie Walsh,

Fórsa Trade Union

Amanda Kane,

Local Government Management Agency

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 - 00003207

27/09/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly and parties should be heard. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 27th of September 2024.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.

The Complainant was fully represented by his Trade Union Official. I was provided with a comprehensive submission dated the 24th of March 2025. No objection was raised to any of the materials relied upon by the Complainant in making his case. In his workplace relations complaint form, the Complainant set out the dispute he has with his Employer as follows:

On 13th October 2023, our member submitted a formal grievance, which the employer investigated. The final report, issued on 28th June 2024, failed to address our member's concerns, leading him to seek an appeal in accordance with the organisation’s grievance and disciplinary policy. Unfortunately, significant delays followed, and our member was ultimately informed that the Director General had delegated the appeal to a Director of Service.

[The Trade Union] raised an objection to this delegation, as the initial investigation had already been conducted by someone of the same grade (Director of Service), and the employer refused to appoint an individual senior to the original decision-maker. This action was a clear breach of the organisation’s grievance policy, which explicitly requires that appeals be escalated to the next management level or, in certain cases, referred to the HR Officer.

While we acknowledge the Director General’s has the power to delegate his duties as he considers appropriate, he did not delegate his powers in this case. Consequently, the appeal was set to be heard by someone of equal standing to the original investigator, which compromised the independence and impartiality required for the appeal process. This not only violated the organisation's policy but also breached the principles of natural justice and fairness.

Our concerns about potential bias were communicated to management, as it was evident that the appeal would lack the necessary objectivity. [The Trade Union] made it clear that failing to appoint a suitably senior individual would force us to deem the internal grievance process exhausted under Section 9.(3) of the Industrial Relations Act, 1990. As management did not rectify the situation, we were left with no option but to bring the case before the adjudication services of the Workplace Relations Commission (WRC).

The Complainant is asserting that in the interests of objective fairness and natural justice any appeal in his Grievance process should be heard by a higher authority instead of the equal (or lateral) authority that has been offered.

The Complainant further elaborated on his rationale for making his demands in his written submission.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full representation at this hearing as provided by a representative from the Local government Management Agency. The Respondent provided me with a written submission dated 2nd of April 2025. A number of representatives from the Respondent HR team attended though they were not required to contribute as the Submission was deemed sufficient. I note that the Respondent Submission concluded as follows:

Other than making spurious allegations they have provided no factual evidence to support phrases such as “compromising the independence and impartiality of the appeals process”.

The fact that the individual hearing the appeal is at the same level provides no basis allegation in relation to independence or impartiality. There is obviously some misunderstanding of the principles of natural justice one assumes that this is a reference to Nemo judex in causa sua but there is no factual basis for same other than Mr. Dxxx is at the same grade as the original decision maker.

There is no foundation for the allegation that Mr. Dxxx would lack the necessary objectivity other than he is at the same grade.

2.18 The Complainant appears to confuse a disciplinary process with a grievance process two elements which are significantly different in their nature and substance.

2.19 The scenario as set out that only the Director General could hear the appeal and every other member of staff of the Council would be in some way biased or impartial or lack independence is a flawed premise. If the Director General was absent for whatever reason this would be the case and if the premise was to hold true the Complainants appeal would remain unaddressed for whatever length of time of such absence which it is assumed would equally be unacceptable to the complainant

2.20 The Council asks the adjudicator to dismiss the current complaint

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the positions put forward by the parties’ respective representatives herein.

At the outset, I must state that I agree with the general principal that matters should, where possible, be appealed “up the line”. The rationale seems, to me, to be the need to have a hierarchy of authority. So, that if a decision maker knows that his or her work (in terms of conducting an investigation and/or in making a final decision) might fall to be reviewed on Appeal by somebody higher up in the organisation structure then, it stands to reason that the decision maker might be more careful and attentive in how he or she goes about the process. This is, after all, how the Courts work and indeed how the WRC works on appeal to the Labour Court.

It is, to my mind, not surprising that this general principal is to be found, for example, in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000). Under the General Principals outlined in Section 4 of the Code wherein it states:

"Good practice entails a number of stages in discipline and grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving , HR/IR Staff…etc

In fact, the principal is clearly also recognised in the Respondent’s own Grievance Policy & Procedure which explicitly states under the heading “Appeals”that:

 "If the employee is dissatisfied with the determination, the employee may appeal the determination, in writing, to the next management level/or in certain circumstances to the HR Officer, within 10 working days, stating the grounds of Appeal.”

I am surprised that the Respondent has taken such a hard-line position herein. In it’s own letter of the 26th of June 2024 directed to the Complainant it specifically assures the complainant that:

“Any Appeal will be carried out by the Director General or his nominee.”

I understand that the internal organisational structure means that there is only one Director General as against eight Directors of Service serving directly under him or her. This makes it difficult where various Directors of Service are tasked with conducting internal Grievance and Disciplinary procedures as the there is only one Director General available to hear them all on Appeal. However, there can be no doubt that this is best practise and indeed this is what is intended to be done in the Respondent per their own procedures and the specific letter of the 26th of June already highlighted.

What has been offered is, to my mind, something more akin to a peer review than an Appeal. I mean no disrespect to the Director of Service nominated to conduct the Appeal, but I am satisfied that best practice would ensure that the Director General should perform the Appeal. The matter ought to be appealed “up the line”.

I accept that the Director General may not have the bandwidth to deal with each and every Appeal that falls within his or her remit but that is not the fault of the Complainant. The Respondent cannot be allowed to offer a below par alternative and must ensure that the Director General is aware of the obligations of the post. Where the Director general is not available then a solution must be found in conjunction with the Complainant and not a solution foisted on the Complainant.

The Complainant representative noted that it was the Respondent who had nominated a Director of Service in the first instance, when they knew or ought to have known that the right of Appeal lay to one person and one person only. Had the Respondent nominated someone further down the line – for example a Senior Executive Officer – then the right of Appeal would have been heard by any one of eight Directors of Service working in the organisation.