ADJ-00034402 - Workplace Relations Commission Jean-Philippe Charpentier v Verizon Ireland Limited

• Jurisdiction: Ireland
• Judgment Date: 14 April 2023
• Court: Workplace Relations Commission
• Docket Number: ADJ-00034402
• Date: 14 April 2023
• Respondent: Verizon Ireland Limited

Procedure:

On the 27th July and 11th September 2021, the complainant referred complaints pursuant to the Transnational Information and Consultation of Employees Act. The complaints were referred to adjudication on the 22nd June and the hearing continued on the 22nd and 23rd September and the 3rd and 4th November 2022.

The hearing was held remotely. The complainant was represented by Tony Kerr SC instructed by Dr Herta Dӓubler-Gmelin, Schwegler rechtsanwӓlte. The complainant was accompanied by fellow members of the Verizon European Works Council, who also took complaints, Kevin Rodgers, Jan Frӧding and Pavel Macho. Dr Werner Altmeyer also gave evidence on the complainant’s behalf.

The respondent was represented by Tom Mallon BL instructed by Síobhra Rush, Lewis Silken solicitors. Alan O’Rourke and David Hopper, Lewis Silken also attended. Dragos Voinescu and Michele Minnebo of Verizon attended as witnesses.

The evidence of Mr Charpentier and Dr Altmeyer are set out below. The evidence of Mr Rodgers, Mr Frӧding and Mr Macho is set out in their respective decisions. The evidence of Mr Voinescu is set out below as are the legal submissions of the parties.

In accordance with section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant is Chair of the Verizon European Works Council (‘EWC’). He is based in France and his direct employer is Verizon France SAS. Following the exit of the United Kingdom from the European Union, Verizon nominated Verizon Ireland as the representative of central management. The Verizon European Works Council agreement (‘the Charter’) expired on the 20th October 2020 and the EWC is operating under the subsidiary requirements as set out in the Annex to Directive 2009/38/EC (the ‘Directive’).

Summary of Complainant’s Case:

Along with the other Verizon complainants, this complainant raised the failure of the respondent to discharge the costs of attending a training conference in Hamburg on the 20th and 21st September 2021, hosted by the EWC Academy. Separate to the other Verizon complainants and in his capacity as Chair of the Verizon EWC, the complainant raises the invoice submitted by the expert engaged by the EWC in early 2021 in the amount of €11,220 and which the respondent has not paid. The complainant outlined that these were contraventions of the Transnational Information and Consultation of Employees Act. Evidence of Mr Charpentier On affirmation, the complainant outlined that he was elected to the Verizon European Works Council as well as the national works council. He was subsequently elected to the EWC set up under Irish law. He described the EWC as a democratic body with 21 members from 18 countries. The EWC met regularly and also met as a select committee. The EWC met central management once a year. He outlined that training was provided once or twice a year. He stated that some members were new and required training. The complainant outlined that a vacuum arose following the expiry of the Charter and the migration of the EWC to Ireland. He said that the EWC needed the input of an expert because of the vacuum. The EWC sought training and welcomed the training proposed by the respondent. They asked that the training focus on subsidiary requirements in the light of the expiry of the Charter. The complainant said that most of the EWC members were re-elected and attended the online training organised by the respondent (referred to in this document as the ‘Dublin training’). He described the first session as ‘box-ticking’ and the second also covered familiar ground. He learnt the most from the first session, in particular the discussion of the HP case. In respect of the session on the Transnational Information and Consultation of Employees Act, they were ‘left hungry’ by the presentation, in particular the impact of continuing under subsidiary requirements. The complainant said that the presenters pushed back on questions posed to them. They were left with the impression that it was long and painful to avail of dispute resolution in Ireland. The complainant outlined that he expected ‘training’ to give him a tool box, and the Dublin training had not given him this. The sessions provided by the respondent had been information and not training. They asked for the slides of the Dublin training and for more training. The complainant referred to the correspondence with the respondent regarding additional training, including the Hamburg conference. The topic of confidentiality was important as the EWC needed advice on signing a Non-Disclosure Agreement. The complainant said that the Hamburg training covered more than what was provided in Dublin. He had spoken in Hamburg and set out his experiences. There were 80 people at the conference and there was discussion across the group. They discussed real examples arising from the pandemic. This training provided a tool box, for example in respect of confidential information. Commenting on the respondent’s email of the 24th August, the complainant accepted that he knew he would not be reimbursed for the costs of going to Hamburg. In respect of the expert involvement, the complainant outlined that the expert was engaged as the EWC needed expert advice. The hourly rate was €330, and the expert provided a time sheet. This expertise was required to address subsidiary requirements, the NDA and the impact of Brexit. Only item 3 of the invoice was disputed, and the respondent never disputed the hourly rate or expertise. The complainant outlined that the expert was required in respect of the minutes as the minutes were crucial as this was the first, constituting meeting of the EWC. There was the question of the status of UK employees post Brexit as the UK was the largest country on the EWC. The EWC required a legal assessment of the NDA. Also required was the review of the email exchange. Information and consultation on a named corporate transaction never took place, so the EWC needed advice on whether a Directive breach had occurred. The expert also gave advice regarding the requirement in the Irish legislation for the EWC to cover the costs of any arbitration. The respondent had agreed to pay some of the invoice. The EWC did not provide the respondent with its internal rules as this was not required by the subsidiary requirements. The complainant outlined that there was now no requirement for it to supply the respondent with internal rules, and this had been previously provided for by the Charter. The complainant outlined that while there was no formal process to evaluate an invoice, they ensured that it was appropriate. In cross-examination, the complainant agreed that in respect of his service on the national works council since 2013 and on the EWC since 2014, he was experienced but said that he was not an expert. While there had been good quality information at the Dublin training, this was not enough. Training was more than reading a book and involved being provided with a tool box. It was clear that dispute resolution was different in Ireland. The tool box would have set out where parties could take a case to and recent case law. Not all the questions had been answered during the Dublin training and there was a need for additional training. The respondent said ‘no’ to additional training. The complainant said that the Dublin training showed that the respondent had partly met the spirit of cooperation, but the EWC still faced the NDA issue. The complainant outlined that he was not paid a fee for speaking at Hamburg. Training needs were identified by the select committee and the issue of confidentiality had been the most important one that year. While they were not against the training provided by management, they had acted reasonably in asking for the two training sessions that year. He said that Hamburg became necessary arising from gaps in the Dublin training and was more interactive. The complainant accepted that he was aware that the respondent would not reimburse his Hamburg expenses when he travelled. He had not taken time off to attend Hamburg. In respect of the expert, the complainant said that the expert attended one EWC meeting. While the Irish legislation restricted expert attendance at EWC meetings to one per year, the Directive requires the respondent to provide the ‘means’ and this included the attendance of an expert. It was put to the complainant that the expert was not required for the minutes as this was a record of the meeting; the complainant said that the expert had to ensure that the minutes were correct and had the necessary formality. Expertise was also required as it was not clear whether the Charter could be relied on following it lapsing. The situation post-Brexit was also not entirely clear. The EWC did not prepare a revised invoice as demanded by the respondent as it was clear that it would not pay. He said that it was normal practice for the EWC and the respondent to agree in advance in respect of the expert. The...