Case Number: ADJ-00027622. Workplace Relations Commission

• Docket Number: ADJ-00027622
• Hearing Date: 04 December 2020
• Date: 01 January 2021
• Court: Workplace Relations Commission
• Respondent: A Government Department

ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00027622

Parties:

	Complainant	Respondent
Anonymised Parties	An Executive Officer	A Government Department

Representatives Terence O'Sullivan, TJOS Solicitors Cathy Maguire, BL instructed by Chief State Solicitors Office

Complaint:

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00035361-001	20/03/2020

Date of Adjudication Hearing: 04/12/2020

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

On March 20, 2020, the Claimant, an Executive Officer submitted a Dispute for investigation under the Industrial Relations Act, 1969. The Dispute, outlined by the claimants Solicitor, centred on a grievance raised by email on 13 November 2018, which remained unresolved. On the 16 June 2020 the Employer, a Government Department responded to the WRC letter of invitation to participate in Mediation/Adjudication in the following manner: “I do not object to an investigation of the above Dispute by an Adjudication Officer “ In anticipation of hearing on December 4, 2020, both parties were invited to make written submissions. I requested sight of the claimants submitted appendices already shared with the employer and received these post hearing . The claimant was represented by her Solicitor and the Employer by Counsel. The Employer raised a preliminary argument of jurisdiction under the Industrial Relations Acts.

Summary of Complainant’s Case:

The Claimants Solicitor outlined the background to the claim. The claimant had worked in various government departments since March 1992. She had requested a mobility transfer early in November 2018. On 13 November 2018, the claimant raised a grievance in line with Circular 11/2001 to the National Human Resource Office. The nature of the grievance surrounded a verbal allegation from a colleague in which she was dissatisfied. The claimant was directed to advance her issue through the Dignity at Work Policy and not the grievance procedure. All efforts at resolution, both local and national were unsuccessful and the claimant contended that she had been obstructed in her clear desire for a resolution. The Claimant attached a chronological log of documents of inter party correspondence and she surmised that she had not been given a platform to have her grievance properly aired. This prompted the referral to the WRC. Preliminary Issue of Jurisdiction: The Claimants representative was keen that the claimant be heard at Adjudication as all prior attempts to resolve her grievance had been fruitless and this had impacted negatively on the claimant, who was a long serving employee of 26 years. The claimant was aware that the employer had agreed to adjudication and had focussed on reaching a resolution through Adjudication and was disappointed to be faced with a late formulation of a jurisdictional argument. The claimant’s representative did not formulate a response to Counsel to the Employers opening arguments on jurisdiction. In response to questions posed by the Adjudicator, the claimant confirmed that she was paid by the State, was a member of the State Pension Scheme and did not pay PRSI. She affirmed that she had raised her grievance through Circular 11/2001.

Summary of Respondent’s Case:

The Employer is a named Government Department. Preliminary Issue: Counsel for the Employer outlined that the claimant did not have jurisdiction to process the claim as she could not be recognised as a “worker” within the meaning of the Industrial Relations Acts 1946-1990. The claimant is employed by the State and there can be no doubt of her exclusion in terms of taking a case under the Industrial Relations Acts as she is precluded by section 23 of the Industrial Relations Act, 1990. “worker”. 23. — (1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “ worker” means a member of the Garda Siochana referred to in subsection (1A) and any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include— (a) a person who is employed by or under the State, (b) a teacher in a secondary school, (c) a teacher in a national school, ...