Worker

Employer

Anonymised Parties

Business Manager

A Utilities Business

Representatives

Tom Fitzgerald, Unite the Union

Louise O'Byrne ,Arthur Cox

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 - 00003947

12/03/2025

On 12 March 2025, The Workers Union, Unite, submitted details of an Industrial Relations Dispute between the Worker and his employer.

 On 9 April 2025, the Employer confirmed their intention to participate at hearing. On 7 July 2025, the Employers Legal Advisors came on notice in the case.

Both Parties were invited to a private hearing on December 1, 2025.

On 20 November 2025, I wrote to both parties seeking written submissions to assist in my preparation for hearing.

Both Parties made helpful submissions. Both Parties were helpfully represented at hearing.

This dispute has emerged in highly unionised workplace and has needed very careful consideration of the current placing of the worker within the workplace.

The Union raised a number of exceptions to the Employers argument on body of workers within the third-party arena. The Employer was provided with time post hearing to reflect back an opinion on these decisions.

This case comes to hearing as a submission by the Union on behalf of the Worker, that a workplace grievance was not handled within the “basic principles of natural justice “and fair procedures were ignored in dispute handling.

The Worker is employed at a Senior Level in the Utilities Business, which is highly unionised.

He commenced employment in September 2001 and is currently placed on suspension by his employer. This is a point of some concern to him but does not fall for consideration in the investigation sought on 12 March 2025.

It is clear that the Worker carries a high level of dissatisfaction at how matters have unfolded for him in a business to which he believes that he has demonstrated 24 years of enduring loyalty and productivity.

In response to the Employers contention that application of the performance management policy concerned a body of workers  which  excluded the worker via Section 13(2) of the Act , the Union  maintained that this was not a case regarding a body of workers as Policies dating back to 2017/2018 and 2021/2023  chartered course for an agreed operation of the Policy and the Company had taken a liberty by threatening disciplinary action for non-compliance with the PIP . This was subsequently resolved at WRC Conciliation.

By way of written submission, the Union outlined that the Worker is one of 800 employees across a range of categories, including Operational, Administrative and Managerial grades.

A recognised Agreement sets out the general terms and conditions of employment. This provides for the provision of Performance Management and Development Planning system, which was updated by mutual agreement in 2017/2018.

The Union contended that in January 2024, the company issued a Performance Management Policy, which was not endorsed by the Union.

In March 2024, together with all employees as a standard course of action, the worker submitted his objectives onto the performance management system, which were approved.

 This included a roll over historical plan to develop an aspect of new business. This scoped exercise was endorsed by the CEO in May 2024, in the context of a steering group meeting.

A self-assessment of the workers objectives followed within the performance management arena on June 11, 2024.

A delay followed on the scheduling of the mid-year review meeting until 22 August 2024.

On August 21, 2024, the Workers line Manager issued feedback on the CEO response to the “historical plan to develop an aspect of new business.”

The email stated:

“CEO is unhappy with the rate of progress (on the project) and has requested that we get an external resource to support and drive forward “

She added that she and a co worker were addressing this and went on to flag live operational matters.

The Worker went on to meet his line manager the next day and contended that he was met with hostility and underserved blame directed towards him.

On August 27, 2024, the Worker was graded “partially meets “on his performance review and introduced to a Performance improvement plan. (PIP)

This was augmented by his line manager:

“… I know from our discussion that you do not agree with my assessment of your performance, and you will, of course have an opportunity to discuss any concerns that you may have when we meet more formally “

The Worker was dissatisfied by the lack of adequate response to his queries and petitioned the CEO directly seeking clarity on “the rate of progress of the historical project “.

He outlined that the CEO response distinguished the lack of progress on the project from the worker himself. This communique was not available at hearing. The CEO was not present at hearing.

The “Partially Meets” grading was wrongly classified as the options available at the juncture of mid-year are either:

Ahead

On track

Behind

The Worker was denied release of his mid-year evaluation.

The Meeting to advance the PIP was scheduled for September 6, 2024. The Worker was dissatisfied when he was faced with a threatened disciplinary action.

“For noncompliance with agreed procedures “.

On 20 September 2024, he raised a grievance:

1 The Performance Management Policy was not applicable to him as it was not agreed with the Union or consistent with the Internal Agreement.

2 The Policy was not followed by the Employer.

3 The composition of the proposed PIP had not been discussed by the line manager.

The Union, on the workers behalf raised some concern regarding noted omissions from minutes.

On November 4, 2024, the grievance outcome did not favour the worker. He appealed.

On an unspecified date in January 2025, the appeal to the acting head of regulatory affairs was deemed unsuccessful.

On February 12, 2025, the Worker sought a further appeal to Head of Human Resources.

Nothing changed. As all internal options had now been exhausted, the worker appealed to the WRC under the Industrial Relations Act in March 2025.

The Union contends that there has been a lack of synchronicity between concerns regarding the workers performance and what was discussed with him at the midterm review meeting.

The Union outlined that the Employer did not cite the CEO concerns regarding the project but concentrated instead on issues “well beyond the issues raised by the line manager “

The Union argued that the Worker was wronged when the Performance Management Policy was unilaterally changed by the employer. He was not given a chance to address the concerns before being wrongly placed on an end of year review rating rather than a mid-year review rating.

This was unreasonable and exclusionary treatment   which was repeated. He contends that threats of disciplinary action were unwarranted and was testament to the employer overshooting the permitted runway.

The Union sought a strong Recommendation to rectify the wrongs done and to

 “Prevent recurrence “

The Union sought an independent review of the facts and to make recommendations aimed at remedying the behaviour and detriment suffered by the worker which would comprise.

1       January 2024 Performance Management Policy should not have been relied on when not prefaced by agreement.

2       That “partially meets “rating be removed alongside a withdrawal of the PIP and threats of disciplinary action. The Performance record should then be restored to that predating June 2024

3       Allegations levelled at grievance outcome stage be withdrawn.

4       An agreed third party be assigned to reset the workers working relationship as far as “reasonably practicable “

At hearing, the Union outlined that there was no Agreement on the processing of a PIP through to disciplinary stage in the January 2024 document.

The Union contended that they had protested to this approach and finally they were heard and the Company accepted that the Policy was used arbitrarily. This was subsequently addressed at a WRC Conciliation in May 2025 and the reference to disciplinary process was removed in an Agreement. Referenced duration of this Agreement is December 2025.

The Union informed the hearing that the workers employment status had changed during the lifetime of this Dispute, and he currently stands suspended from his position since September 2025.

The Union outlined that the Worker carried a historical unease following an earlier disagreement with the company which dated back to 2021 and held the view that he was now facing a systemic unfair targeting, and these predictions had now come home to roost.

He confirmed that he had received a performance related 10% bonus for 2024 calendar year, which he appealed to an external independent reviewer, but this was not altered.

His Line Manager, Ms A commenced as his Manager in January 2023. The Performance ratings for work performed ranged from 1-5. He was disappointed as he had received higher gradings in previous years.

The Worker was sceptical at the proposal of a PIP as he truly believed that it was not warranted. He had requested sight of an accompanying form but did not receive one.

He continued to flounder while he viewed a series of allegations populating the Employers responses to his grievances and appeal.

Throughout the hearing, the worker contended that he was wrongly classified as an under performer and he had consistently scored highly in performance management. He confirmed that he had not lost income as a result of the procedural flaws but maintained that his career had been unfairly damaged by the Employer.

In conclusion, the Union identified the appointment of an agreed third party to re look at the circumstances surrounding the circumstances of the case as the sole veritable way forward.

The Union put forward ADJ 36434 and LCR 22513 as the WRC and Labour Court recognising a dispute not limited by section 13(2) of the Industrial Relations Act, 1969.

The Employer has come to hearing to dispute the claims made and has provided a chronological submission on workplace events dated 26 November 2025.

The Employer is a large Utilities Company and has agreed to participate in this Industrial Relations investigation out of respect for the Adjudication process.

The Employer Representative drew attention to the parameters of Section 13(2) of the Industrial Relations act 1969.

Where a trade  dispute( other than a dispute  connected with rates of pay , or hours or times of work of , annual holidays of a body of workers )exists or I apprehended and involves workers within the meaning of Part VI of the Principal Acct , a party to the dispute may refer to a Rights Commissioner

 (WRC Adjudicator since 2015)

The Employer deemed the workers dispute was pay related as all of the performance management policy has a connection with pay.

The Employer rejected out of hand that they had erred in conducting the provisions of the Policy and relied on a habitual use of this policy over many years.

Any disturbance of this policy would destabilise the grouping of 10 unions present on site and would be wholly unnecessary.

An Educational Specialist v An Educational Body IR-SC  1081, salary and duties post secondment was deemed outside the scope of the IR Act as “no positive recommendation in the complaints favour could be confined in its application to him alone.

A Worker v Employer IR SC 1405, claim for improved pay rates had a “wider applicability across a body of workers “

LCR  22875 A Worker v Stewarts Care Limited Labour Court, the matter of pay during suspension was explored. The Court held that the matter was “connected with the rate of pay paid to a body of workers “in suspension.

The Employer submitted a dossier of cases which grounded the exclusionary argument permitted by Section 13 (2) in their objection. They added that the Performance Management Policy had been in place since 2016 and both Employer and Unions had actioned it from that date.

The Employer requested that the Adjudicator decline jurisdiction on that aspect of the dispute due to its potential for destabilisation of a highly unionised workplace, already compliant with Agreements made.

The Employer went on to detail a chronology of events which had culminated in the hearing of December 1, 2025.

The Employer outlined a fundamental concern with the workers performance and behaviour at work, which had its genesis in 2023. In the context of a mid-year review, the Head of Business Development, Ms A, not present at hearing had applied.

“Partially Meets Expectations “

On his mid-year review, which prompted the augmentation   of a Performance Improvement Plan (PIP).

The Worker took issue with this pronouncement alongside the proposed augmentation of PIP in addition to its formal communication in a letter from the Head of Human Resources on 28 August 2024.

The Worker countered this by submitting a grievance on 20 September 2024.

 He sought to distance himself from both the procedural framework and the process of improvement/correction when he claimed:

1 the performance management policy had not been followed correctly by the employer.

2 There were shortcomings in the Policy.

3 Countered the necessity for PIP.

He attended a grievance meeting in the company of his Union on 10 October 2024 and once more expressed his difficulty with the application of the Policy. He did not hear the Employer when he was informed that policy had been live and applied to many employees over the past number of years.

On 4 November 2025, the grievance outcome was shared but not upheld.

1 the worker had been treated fairly.

2 1:1 meeting occurred. Genuine attempts had been made on feedback and coaching.

3 Behind Plan had been communicated at midyear which conflicted with the workers self-assessment.

5       A proposed PIP suggested in the workers best interest had been spurned.

An appeal followed on 15 November 2024, and a temporary change of line manager followed to Mr B “to allow space for the grievance procedure to conclude “.

It was proposed to equally defer end of year performance management, but the worker sought to proceed.

On 28 January 2025, the appeal conducted by Mr F, Head of   Regulation did not disturb the earlier grievance outcome.

1 policy and custom and practice did not allow appeal of midyear ratings.

A further appeal followed on 12 February 2025 to the Director of Human Resources, present at hearing.

1 reporting to revert to Ms A as grievance concluded.

2 Any discussions on 2024 performance or goal setting 2025 to have tri partite attendance worker representation and Head of HR.

3 provisions of internal and external appeal of eventual rating,

4 “The performance related award for 2024. is due to be paid on March 19. “

The award would be paid on March grading or if not completed paid at mid-year rate with a later balancing exercise.

On 5 March 2025, the Workers end of years evaluation occurred, and he was provided with a

“Partially meets expectation “

On that same day, he submitted the current dispute on the handling of the grievance to the WRC.

He subsequently engaged in two further appeals of the partially meets expectation    rating, one internal and one external. On 4 July 2025, Mr Séamus Sweeney, ex WRC concluded that the Performance Management for 2024 was carried out in accordance with agreed procedures. The appeal was unsuccessful.

The Employer expressed a confidence in the procedural framework surrounding the management of the workers grievance and contended that all findings and reports were set out with clarity.

They contended:

1 The Worker was afforded an opportunity to be represented. He was heard.

2 Each stage of the process was managed by an independent decision maker within the business.

The Employer argued against further involvement by the WRC when the procedural framework was intact.

The Employer urged the WRC to reject the claim.

The Employer had a right to raise issues pertaining to the workers performance.

Post hearing, I received, as requested the Employer viewpoint on relevance of ADJ 36434 and LCR 22513 to the circumstances of this case.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I have also taken account of the post hearing commentary on cases heard at the Labour Court and the WRC under the Industrial Relations Act 1969.

I have listened carefully as both parties outlined the dispute from their perspectives.

The Union was very keen to encompass the Workers current employment suspension in their narrative. The Employer was not.

For my part, I reminded the parties that my role was to investigate the case raised with the WRC on 12 March 2025 and I had no desire to encroach in others territory. The suspension was not before me.

It is important before I move one step forward that I frame the dispute shared with the WRC in its live form on 12 March 2025.

“I am seeking the assistance of the WRC concerning a grievance and the process surrounding it I advanced in my workplace.”

1 basic principles of natural justice and fair procedures   were ignored.

2 All internal processes   have been exhausted.

Claims raised under Industrial Relations Act ,1969 are held in private and anonymised. Attendance is optional but best practice in the world of work.

 This allows the Adjudicator considerable lea way in looking under the bonnet of what has occurred for the parties, before considering those occurrences and perhaps, if at all possible, recommending a way forward based on the solid belief  that this is in both parties mutual  interests .

It is important for me to capture that this dispute occurred in a live employment and while currently, frail and tenuous, it subsists, within the parameters of the contract of employment.

In my work, I find that disputes under Industrial Relations are sometimes analogous to a crisis visit to a Car Garage to address a mechanical impasse in a vehicle. Unlike the modern garages, I do not hold a diagnostic board to pinpoint the malfunction and rectification. I am bound to listen to the parties and read and consider their documents before I attempt to identify a way forward.

I have done this.

This process is underpinned by a positive regard for what both parties bring to the table, however challenging. The navigation tools are based on the fairness and reasonableness matrices.

The Worker, a Senior Manager on the Organisational Chart came to hearing carrying a residual apprehension from an earlier disagreement with the business in 2021. He believed there was an eventuality in his being targeting by the business.

When his recorded self-assessment did not match that of his manager, his approach was to move immediately to place an insulated   cloak of protection around his working life and move swiftly to a position of challenge rather than dialogue.

I would have preferred to see more dialogue, debate, disagreement in this case, rather than a dossier of one-sided emails which are never  empowered to solve disputes as they tend to be one sided in dimension. Conflict when teased out interparty can be creative.

The Employer contends that I cannot consider the application of the performance management policy for want of jurisdiction and from an anticipated “push back from other unions on site “.

I have set out my authority in this case as a WRC Adjudicator (title replaced Rights Commissioner)

Rights commissioners.

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, 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.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(I) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

I revert to the March 12, 2025, narrative. The Union sought help “concerning a grievance “

While I understand that this has since meandered into the workers dissatisfaction with his performance mark, it did not start in that vein.

I am satisfied that this is a dispute about a procedural framework which the employer applied to a grievance lodged on 20 September 2024. My consideration of this is not prohibited as I am certain that a Workplace Dispute is visible and unresolved in this employment. It deserves careful consideration. The Employer has agreed to participate in the investigation.

However, the antecedent event in the case is the vortex/ whirlpool /storm which evolved when the Workers   self-assessment of his 2024 progress   did not match that of his manager.

The grievance was an indirect challenge to this as the nett effect curtailed the application of the PIP as it endured for a 6-month period from beginning to end. In Industrial Relations terms, the grievance, in my opinion served as a spanner in the works.

That is not to say that the worker wasn’t permitted to speak up when he believed that he was being wrongly cast in an Organisation , however , I have found that he fortified his zone of protection by blocking out the clearly articulated  feedback on his performance which predated 2024 .

I can fully accept that 23 years of tenure in a workplace comes with a certain

 “Sock fitting the shoes “sense of familiarity.

 Ms A was a new Manager for the worker, and she identified issues for which she sought a change in the worker.

While I did not meet Ms A to help me understand her approach, my consideration of her procedural framework found a fair and reasonable pathway aimed at managing change through PIP and dialogue.

I listened as the worker told me he was not familiar with PIP, and his queries were not answered. I found this difficult to unravel as the Worker was a Senior Manager with one direct report. Surely, he must have had organisational knowledge of the PIP process.

I have concluded that the Worker  got lost in the storm when he adopted a denial of the concerns raised by the company and while I can appreciate that this defensive approach was aimed at keeping him safe at the business , I believe that he acted against his own  best interests. He got lost in perceived procedural failings rather than scoping out opportunities for growth and survival at the business.

I note the Workers concerns regarding a mention of a potential for disciplinary action if he did not attend a meeting to engage on the Proposed PIP. A careful consideration of that found that it was posed as a third step rather than a course of first action. At any rate, it was disposed of at WRC Conciliation in May 2025 in the context of separate collective discussions. The worker was not disciplined, and he has not lost income. He instead describes a perceived loss in his standing and reputation. This matters greatly to him.

I have found that there is merit in the Dispute between both parties. However, the worker is not currently at work, which makes a Recommendation I might make challenging.

I have identified that there were insufficient boundary walls between operational matters such as correspondence on actual and potential projects and the specific communication on the identified need for him to improve at work within August and September 2024.

I would have preferred to have seen records of direct engagement on   the performance matters rather than logs of avoidance of direct engagement, with cross appeal to the CEO.

I say there is merit in the Dispute as the insufficient boundary walls blurred the lines between daily operations and need for PIP, prompted an extended period of analysis by the Worker which has now culminated in a “paralysis through analysis “for him.

Put simply the worker is hurt and he is stuck, unable to move forward.

I asked the parties to comment on this opinion at hearing. The Parties were not at one with this.

I have no intention in placing myself in the shoes of the grievance decision makers only to state that they presided over a timely and efficient process which culminated in some recommendations for the way forward, which were not welcomed by the Worker.

 He has a stated viewpoint that the resolution of this Dispute lies in a retrospective analysis and winding back of the clocks. The Employer contends his claims should be rejected.

I found that the Employer has been patient with the Worker and allowed him fair procedures in the main, albeit the blurring of operational and performance issues.

I am not persuaded by the Union viewpoint that the worker was wronged in this case. I find that the Worker should take some time to reflect on his combative and accusatory approach which was very apparent at hearing. This is clearly causing him to lose ground at the business.

I am neither persuaded by the Employer viewpoint that the process has now ended and further scrutiny is  unwarranted.

As I say I have found some merit in this dispute.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

On the basis that the Worker returns to the Workplace within the first quarter of this year, I make the following Recommendation on the unique set of circumstances in this case. I fully appreciate that I have no say in his return to work .

This is an employment relationship worthy of saving, but it needs some scaffolding for the next two calendar years.

To guide my thinking, I read once more the findings of my colleague Janet Hughes in ADJ 37911, an IR case of Technical Officer, Manager Grade and a State body. This case sets an interesting insight into what an Adjudicator should find to displace a grievance/investigation.

I have found that the grievance in the case before me was managed fairly and was not contrary to fair procedures. The Worker was fully represented. It is clear that he did not accept the outcome of the grievance rather than it being a flawed process. He was heard by a broad range of Managers at the business.

 However, I have found the interspersal of operational correspondence superimposed on performance management issues to be blurred, counterproductive and limiting.

To seek to map a way forward in this case and hopeful that the Worker remains at the business, I make the following Recommendation.

1 The Performance Management process should be conducted in Person in the Workers case. Follow up correspondence should be agreed within 7 days of engagement.

 I recommend the parties trial and broaden the Director of HR proposal that such meetings could be overseen by his Dept with mechanism for representation to influence an agreed action plan to lift all boats.

2 The Worker should be introduced to the PIP procedural framework for education purposes   and provided with any paperwork which explains or records it. Feedback on past success stories through PIP could be shared.

3 The Employer should meet with the Worker to assist in his personal development to assist him to navigate his employment with the identifiable tools for his benefit within 4 weeks of this Recommendation.

This should be reviewed annually for two years .

Grievance , fair procedures , Performance Improvement Plan .