Worker

Employer

Anonymised Parties

A Healthcare Worker

Nursing Home Organisation

Representatives

  Self Represented

Gareth Kyne MSS Ireland Limited

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 - 00003815

13/02/2025

On the 13/02/2025the Worker submitted a complaint to the Commission that they had a trade dispute to be investigated.

They had taken up employment on the 15th of January 2024 and had witnessed and experienced matters of great concern which they duly reported to the Director of Nursing. They were unsatisfied with the response from the Employer and referred their complaint to the Commission.

There had been an associated complaint related to pay and this matter has been withdrawn by the Worker.

Having formally opening the hearing I ensured that the Worker understood the scope of the IR Act and the limitations it places on an Adjudicator and the voluntary nature of complying on the part of the Employer.

The Employer sets out that I have no jurisdiction to hear the matter nor to make a recommendation.

The Worker related a grim experience to the hearing of witnessing an assault, complaining of the same and herself experiencing an assault by the original perpetrator. They reported this to the Director of Nursing  and found that their own employment was threatened and they were relocated to a different facility. At the time of referring their dispute to the Commission they had not been informed of the outcome of the investigation into the complaint. They asked to be put on the night shift to avoid contact with the person involved but this was denied for reasons unknown to them.

The matter has led to illness for the Worker and ultimately, they left the employment.

The Worker was clear that despite all the other issues raised in their complaint form they wanted to only focus on the events that happened to them.

They ask the Commission to award compensation for what she had to endure.

The Employer was well represented at the hearing and set out their arguments strongly and coherently.

The raised a preliminary point in regard to the Jurisdiction of the Adjudicator. They set out that the complaint to the Commission was made on the 13th of February 2025. The Complaint came properly to their attention having been misdirected after the three-week deadline for them to object to the hearing. Had it not been misdirected they would have objected to the hearing taking place, which is within their right and the hearing would not have proceeded.

Further and more importantly the 13th of February is premature in terms of the finalisation of the internal mechanisms which were only raised by the Worker on the 23rd January 2025.

The Employer sets out that it is not required to address all the matters as the Worker lacks  locus standii in reference to the assault on a colleagues. Further,  the issues themselves are premature given the dates of complaint.

On the other matters referenced it is the Employer position that there is substantive case law prohibiting the jurisdiction of the Adjudicator and Labour Court where the matter has been prematurely referred without the exhaustion of the internal processes.

The matter of being unable to relocate to the night shift was due to concerns of supervision of the Worker and being moved to another site was a matter of legal principles relating to the then alleged perpetrator.

In essence the case of the Employer is that:

·         The Complaint is premature, and the Adjudicator does not have jurisdiction for that reason.

·         The internal processes were not exhausted before referring the matter to the Commission.

·         The Complaint of the Worker against their colleague was upheld and they no longer work for the Employer, and she was given the limited information related to this as is prudent on the part of the Employer.

·         The movement to the other location was at the request of the Worker to be separated from the then alleged perpetrator, which was the only reasonable recourse available to the Employer at that point in time, given all the circumstances.

·         The Employer is emphatic that the Worker cannot bypass the accepted route of exhausting matters internally before making a referral to the Commission.

·         The Employer denies that there was an unreasonable delay in dealing with the matters before or after the referral to the Commission.

The Employer asked the case to be dismissed for lack of jurisdiction.

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

I explained at the outset that limitations placed on me by Section 13 of the IR Act 1969f or the benefit of the Worker given the Employer was very ably represented. The Worker thought at the time of referral it was only route that was open to them and went on to relate a harrowing retelling of the events which was clearly very upsetting for them to recall. It is quite clear that the Worker has suffered from her experience as she relates it and has shown a great deal of strength and courage to do so at the hearing.

As a matter of law it  is important to deal with the jurisdictional element of this complaint as matter of priority. Clearly it has been submitted to the Commission prematurely, which is not uncommon in the case of Worker who is not properly advised or represented by a trade union or lawyer.

It is long held by the Labour Court that the internal mechanisms must be exhausted before a referral to the Commission.  I am conscious that the Worker would not have full knowledge and understanding of this, but that is not a valid excuse in law. It is also clear that the Employer would not agree, as is their right, to any recommendation from me for an award of compensation. This would differ, of course, if the matter had been referred under other legislation and the facts were proven to the satisfaction of an Adjudicator. However, given that the matter is prematurely referred I have no jurisdiction under the 1969 Act to make a recommendation on the dispute.

Section 13, Premature, misconceived, lack of jurisdiction