ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC – 00001539 and IR – SC 00001540
Parties:
| Worker | Employer |
Anonymised Parties | Employee | Employer |
Representatives |
| Mark Comerford IBEC |
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 - 00001539 | 14/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00001540 | 14/07/2023 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 15/11/ 2023 and 24/04/2025
Procedure:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission, the said Director General will then refer such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence/testimony of the parties and their witnesses and will also take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
A Trade Dispute in this context will include any dispute between an employer and a worker which is connected with the employment or the non-employment, or with the terms and conditions relating to and/or affecting the employment of any person.
I have confirmed that the Complainant herein is a Worker within the meaning of the Acts, and I have conducted an investigation into the said trade dispute as described in Section 13. It is noted that Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties on foot of any investigation so conducted. In making such recommendations, I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. I note that any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any and all internal procedures or structures which ought to have been utilised before bringing the dispute to the attention of the WRC.
Where applicable, this investigation may involve an assessment of whether processes have complied with the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. 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. 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. As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts the recommendation is anonymised. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 14th of July 2023. |
Summary of Workers Case:
The Complainant has brought two matters to my attention through the Industrial Relations Process. These are:- A dispute concerned the disciplinary sanction imposed on the Complainant at the end of a Disciplinary Process. A dispute concerning the bullying and harassment procedures that was invoked in response to the interaction the Complainant had had with his Line Manager B. |
Summary of Employer’s Case:
The Employer has stressed that the Complainant’s issues are now obsolete in circumstances where the Complainant has departed the workplace. More significantly the Respondent has asserted that the Complainant cannot look for relief from the Workplace Relations Commission in circumstances where the Complainant has not exhausted the robust internal Grievance and Appeals processes provided by the Employer in this workplace. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties as well as the significant oral evidence adduced.
I have carefully considered the evidence adduced herein. The Complainant commenced his employment on the 7th of January 2019. The Complainant was engaged as an Operations Community Analyst.
The Complainant had had a number of issues raised with him which led to disciplinary hearings. The first of these disciplinary hearings was commenced in and around August of 2022 with the outcome being given to the Complainant on the 8th of September 2022. The Complainant was given a six-month written warning at that time. I note that the Complainant did not appeal this decision. As I understand it, this disciplinary issue arose out of the seemingly intentional misuse of client tools. In the aftermath of this process the Complainant states that he felt that his line manager (A) who had conducted the disciplinary process set about micro-managing the Complainant. This felt controlling and oppressive to him, but when he asked her about it, she stated that it related to the fact that he was under a six-month warning. When line manager A was away, her replacement B tended to treat the Complainant in much the same way. He felt closely watched. The Complainant felt that the treatment was calculated to humiliate him.
The Complainant was particularly aggrieved when in October of 2022 line manager B took the Complainant aside and explained that she had a serious concern about his failure to use the in-house systems correctly. B told him that she was going to have to escalate this concern to HR. As I understand it, the Respondent works very closely with third party clients, and it is wholly responsible for ensuring that its own staff (including the Complainant) carefully followed and adhered to the systems and codes created by the client. There was no room for deviation. The Respondent is adamant that there were legitimate questions concerning the Complainant’s use of the Production Codes. The allegation this time concerned the incorrect use of company codes during working hours.
The Complainant was upset at this development as he was already on a verbal warning and any further disciplinary action could, he knew, affect his job. The Complainant was also upset that B had blindsided the Complainant by taking him aside in the manner that she had, to tell him she was reporting the issue. Though I do note that the Respondent asserts that this was done to informally put the Complainant on notice of the fact that a matter was being escalated.
The outcome of this second Disciplinary process (received on the 15th of December 2022) was a 12-month Final Written Warning which put the Complainant in a precarious position, and which he chose to Appeal. This Appeal was notified to a Mr. OM on or about the 21st of December 2022.
The Complainant says that even before the outcome on this second Disciplinary process had been reached that he and B had clashed over his taking paid time off when he was due at a formal Investigation/Disciplinary meeting which had been set up. I cannot know whether there was anything deliberately done at that time. What is clear, however, is that the Complainant felt that the manner of B’s reprimand amounted to an instance of workplace bullying.
However, what is also clear is the fact that the Complainant had also, in this period, been looking to change jobs. It is not clear when the Complainant applied for another job with an alternative employer, but I understand that the Complainant received a job offer just after the outcome of the second disciplinary had been made known to the Complainant (15th December 2022). It is also worth noting that the Complainant was advised that that his new job would commence on the 4th of January 2023.
As was his right the Complainant had exercised his entitlement to Appeal the said outcome of the second disciplinary process - which he did on the 21st of December 2022. The Complainant also chose to raise a Grievance against Line Manager B on the 23rd of December 2022. This Grievance was set out in an email and was wide ranging and included other issues such as an issue concerning the non-availability of overtime to him.
I accept that even as he was planning to extricate himself from this workplace, the Complainant was well within his rights to raise a Grievance against a line manager and also to Appeal the outcome of a disciplinary process. Unfortunately, the Complainant seemingly emailed both issues to the incorrect email address – going through the 3rd party client address rather than the Employer address. This was not a fatal mistake but would give rise to delay over the Christmas period. And so it was, that there was a delay in the two separate issues being picked up on in the Christmas period where a skeletal staff was operating. In fact, I have been told that Mr. OM had become unexpectedly unavailable so that the Appeal was not picked up by him in a timely manner.
What is also true is that the next thing that happened is that the Complainant simply left the workplace on the 7th of January 2023 without following up with HR to see what had become of both the Appeal on the disciplinary finding and the grievance against the line Manager.
A workplace relations complaint form issued on the 14th of July 2023. This is more than six months after the employment ended. This included two disputes raised to be considered under the Industrial Relations machinery.
It is tantamount to a condition precedent that there is an obligation on a worker/Complainant that he or she will have exhausted the workplace mechanisms for bringing Grievance or complaint before reaching for the WRC option.
The Complainant lodged an Appeal against a Disciplinary sanction towards the end of 2022 and lodged a Grievance against a Line Manager in and around the same time. Some two to three weeks later the Complainant left his job without ever chasing up what had become of these issues. Had the Complainant stayed in the workplace, I have no reason to believe that these issues would not have been fully dealt with in-house.
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Recommendation:
As noted, Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties and on foot of any investigation so conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. I am satisfied that I have set out the merits of the disputes above.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
IR - SC – 00001539 – This dispute concerned the disciplinary sanction imposed on the Complainant. I make no recommendation in circumstances where the Complainant had left the workplace before an Appeal against the severity of the sanction was dealt with.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
IR - SC – 00001540 – This dispute concerned the bullying and harassment procedures. I make no recommendation in circumstances where the Complainant had left the workplace without confirming that this Grievance had even been received by the Employer, let alone been acted on.
Dated: 01/07/2025.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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