WRC cases: Trying to solve problems in the workplace easier said than done

More people are taking work disputes to the Workplace Relations Committee but the complexities of the system can be hard to grasp for the parties involved, writes Caroline O’Doherty.

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Some of the cases coming before the Workplace Relations Commission in recent times might create the impression that work brings out the worst in people.

An amusement company boss takes his employee miles out to sea in a speedboat to interrogate him over missing money while emphasising the distance to shore and the likelihood of hypothermia killing him even if drowning didn’t.

Two warehouse workers have an altercation over there being no milk in the canteen and insults fly, as does the subsequently purchased milk carton.

A visitor centre worker and his boss have a blow-up over the former’s mistaken belief that he was being instructed to get down on his hands and knees and scrub a floor with brillo pads and the latter’s failure to clear up the misunderstanding.

There appears ample material for a screenplay that would be a grotesque mix of The Office and Pulp Fiction. Workplace Relations Commission (WRC) director general Oonagh Buckley doesn’t bat an eyelid, even at the more colourful examples.

“It doesn’t shock me that people end up in rows in the workplace. You spend a third of your life at work. It can get very hot and heavy,” she says.

It’s what happens, or doesn’t, to cool and lighten the atmosphere that makes the difference between whether an issue is resolved with a handshake or ends up in a WRC ruling.

Going on numbers alone, it looks like fewer disputes are being handled in-house, but that may not be the full story.

“We are seeing a growth overall in complaints and it’s hard to know the reason for that,” says Buckley.

“They’re up this year 13% on last year, but the reason for that is probably more to do with the fact that there are more people at work. We now have 2.25m people at work and the number of interpersonal disputes that people get into will follow that.”

There is also greater visibility around workplace rows in recent years, says Michael Doherty, an expert in employment law at Maynooth University.

Prof Doherty puts that largely down to the amalgamation of the Labour Relations Commission, the first instance functions of the Labour Court and the Employment Appeals Tribunal into one body, the WRC, in 2015.

“You wouldn’t have heard about a lot of the old rights’ commissioners hearings which looked at the kind of issues the WRC is hearing now so more details are being published now and it gives us a clearer picture of what was always going on but was just hidden from us a bit,” he says.

However, along with a growing workforce and increasing visibility, there are other trends that have an impact. Falling trade union membership is one of those trends, and whereas in the past, a worker could have gone to their union representative to air a grievance and start a resolution process, fewer have that option now.

“We’ve been saying for the last 10 or 15 years, isn’t it great the number of strikes is going down. But while strikes are going down and collective disputes are going down, individual disputes are going through the roof,” says Prof Doherty.

“Everybody has a different view on trade unions but one thing about a collective dispute is, if you get a resolution, it applies to a bunch of people and it’s clear and well-known to all so it can save having multiple individual disputes.”

Ms Buckley also believes the decline of trade unions has an effect, although she says their influence is still felt.

“Membership is about 20% in the private sector and about two-thirds in the public sector,” she says. “We still handle about 2,000 collective conciliations or facilitations a year, so some years maybe a million employees are covered by our collective work.

“Nonetheless, in smaller companies and in the private sector, you’re less likely to be in a trade union so, in those circumstances, the question might arise how do you handle an interpersonal issue or dispute?”

Good management and effective human resources policies and procedures would seem to be the answer to that, but again, it’s not that simple.

“Most employers in Ireland are SMEs [small and medium enterprises] and they’re small SMEs so they employ maybe 20 people at maximum,” says Prof Doherty.

“In fairness to employers like that, there is a lot of regulation, there is an awful lot of legislation and the law is dynamic so things are changing all the time.

“If you’re running a small business and you’re working in it yourself and you’re managing it and you’re doing taxes and everything else and on top of that, you’re trying to keep on top of the latest developments in employment law, it’s very difficult.

“What does shock me, though, is that, even with fairly big organisations, not multinationals but sizeable companies all the same, it seems like frequently, the human resources function is not what it should be.

“It may be because one of the first things to go if cuts need to be made is HR. So you have companies who make cuts in the recession, they outsource payroll and get rid of HR because they think, we just need people to do their job, everything else is surplus.

“But then suddenly you have a boom and full employment and you need to hire people quickly and the HR function is no longer there. When you have these wild cycles economically, it’s hard for employers to lay out sensible medium to long-term strategies for the way they manage people.”

Ms Buckley also places strong emphasis on HR deficiencies.

“There is a very big gap in the HR capacity,” she says.

“Where people get into the most trouble is in SMEs. If there’s a major falling out and tempers flare, they don’t have a HR support function so they can get themselves into a lot of trouble.

“They generally can’t afford HR and they can usually get along without it but it’s the one time they do need it that the absence of it can cause problems.”

The WRC has produced guidance books that are available online to walk employers through all the stages of an employee’s working life from hiring to firing or otherwise ending the employment relationship, and all the key issues that can arise in between.

“It’s important that people are able to take a step back and ensure that if they’re having to take action about something, that they get the steps right so that the relationship starts and ends properly,” says Ms Buckley.

“We detail codes of conduct too and grievance and disciplinary procedures. It’s very important that companies have these and follow them because you’re less likely to have a problem when you come before an adjudicator at the WRC and you could avoid coming here completely.”

The kinds of disputes coming before the adjudicators have changed slightly — fewer maternity related cases and more age-related, for example. Issues around gender discrimination and sexual orientation are also becoming more frequent.

“There are lots of social changes happening that inevitably come into the workplace. People don’t switch off because they enter the office or the factory,” says Prof Doherty.

“So for example, the MeToo movement — we’re all reading about it, we’re all hearing about it and suddenly something that happens at work regularly, you look at it in a different light and think well maybe that’s not acceptable.”

One big social change over the past decade is the prevalence of social media and how it blurs lines between the private and public, the worker and the person.

“From a business perspective, that can be very challenging,” says Ms Buckley. “The reputational effects from the behaviour of employees can be problematic. We haven’t seen a big number of cases yet but there could be down the line.”

“Will be,” corrects Prof Doherty. From his contacts with employment law solicitors, he says they are seeing a surge of cases coming across the desks.

“People are getting sacked or disciplined because of something they’ve fired off on Twitter or Facebook and they’re thinking, it’s 8pm on a Saturday, I’m at home, it’s my time, it’s my phone and I can do what I like but that’s not really the case.

“I don’t think we’ve quite got our heads around it yet, the fact that the line between home and work is definitely more blurred and that, depending on how you use social media, it can impact on the perception of you as an employee and on your employer. I think the only advice is, don’t talk about your employer on social media, full stop.”

Of course, if everyone followed that advice, there might be less need for solicitors and one thing the WRC has noted of late is a rise in the number of complainants and companies arriving for adjudications with solicitors by their sides, despite the fact that the process was designed for people to appear by themselves.

“Last year, about 50% of people turned up unrepresented. A slightly higher proportion of employers who attended were represented,” says Ms Buckley.

“Those numbers have gone up this year. It’s about 60% of complainants were represented and about 75% of employers. There may be a feeling out there that if you don’t have a solicitor with you, you won’t get a fair hearing but the reality is that it makes little odds whether you’re represented or not. What our figures show is that it is roughly 50-50 in terms of wins by complainants and employers.”

Another misperception is that there is a big payday at the end of a win but, in fact, the average award in the first six months of this year was less than €5,000 and 75% of all awards were for less than €5,000.

Higher awards tend to come from the Labour Court which acts as the appeal court when rulings from the WRC are rejected but there can be a higher price to pay there too as the hearings are in public and the published rulings name the individuals and companies involved.

Prof Doherty argued for the same approach to be taken to WRC rulings but IBEC, on the employers’ side, and the ICTU, on the unions’ side, argued for anonymised rulings to protect the reputation of companies and the future employability of complainants.

“There is merit in both those arguments but ... talking about a driver in a company loses some of the context that might help us learn more about what’s happening in different kinds of workplaces,” he says.

Ms Buckley looks at it from a different perspective.

“Our goal should be to try to help people avoid having any of these complaints come before us by giving them the information and guidance to sort things out internally. I have to say though, that’s unlikely to happen any time soon.”

‘What you planned and did to me last Thursday morning was unforgivable... I can’t understand why; why did you do what you did?’ - Discrimination, harassment, and unfair dismissal cases adjudicated by the WRC

Questioned at sea

A worker at an amusement company was forced to resign from his job under duress after he was brought out to sea in a speed-boat by his boss and aggressively questioned for an hour over a missing €10,000.

The worker said during the questioning on the boat, 4km from shore, reference was made to the fact that he would not be able to reach land by swimming because of the coldness of the water.

The worker denied taking any money and told the WRC that he was scared and cold during the questioning that continued for about one hour.

The boat was untied from a buoy and made its way back to the harbour while the questions continued.

The worker told the WRC he was subjected to physical and mental stress, was verbally abused and that he was forced to resign under duress.

He said he was asked about stealing money from the company and that the director was aggressive in his language.

The firm subsequently posted out a money order of wages that was owed to the worker. He returned the order with a note stating: “What you planned and did to me last Thursday morning was unforgivable... I can’t understand why; why did you do what you did?”

WRC adjudication officer Joe Donnelly said: “It is clear that the purpose of the exercise was to frighten the complainant and this had been successfully achieved. The further purpose would appear to have been to get the complainant to resign.”

Mr Donnelly found the man was unfairly dismissed.

Driver’s ‘fed-up’ days

A van driver for a Dublin- based transport firm who failed to show for work on his “fed-up days” was awarded €2,000 for his unfair dismissal.

The company CEO sacked the driver in May of last year after he had not shown up to work for eight working days and three “fed-up” days over a three-month period.

In his claim for unfair dismissal, the van driver argued that there was no reason to dismiss him.

He said that he was never put through a disciplinary process and had no previous warnings.

The van driver said he missed a few days and called them his “fed-up days”.

He said when he turned up for work on May 15, his boss told him that he had no work.

According to the firm, the worker agreed with his employer’s perception that he was unhappy and disillusioned with the job and accepted that he could not continue to just not show up for work when he didn’t feel like coming in.

The employer said the driver accepted that his job was in danger. Finding that the man was unfairly dismissed, WRC adjudication officer Marie Mulcahy stated that, irrespective of the actions of the driver or the degree of wrongdoing, the employer “must follow fair procedures”.

Ms Mulcahy said the driver “was deprived of any process conforming to the requirements of natural justice. There was no advance notice that dismissal was being contemplated, no process, no right of representation offered and no appeal procedure provided.”

Emails after midnight

A business executive at a subsidiary of meat producer Kepak was awarded €7,500 over being required to deal with out-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week.

The Labour Court ordered Kepak Convenience Foods Unlimited Co to pay former business development executive Gráinne O’Hara €7,500 over repeated breaches of the Organisation of Working Time Act.

Her contract of employment required her to work 40 hours per week but she argued that she worked close to 60 hours a week, sometimes dealing with work emails after midnight.

She submitted copies of emails that she sent to and/ or received from her employers both before normal start time and after normal finish time on numerous occasions over the course of her employment.

According to the Labour Court, instances of emails sent after midnight were included in the documents.

Ms O’Hara submitted emails that were sent to her employers and responses that were received from her employer before 8am.

Kepak submitted that the volume of work undertaken by Ms O’Hara was in line with that undertaken by other members of staff, none of whom worked in excess of the 48-hour maximum set out in legislation.

The court found that the Kepak firm was, through Ms O’Hara’s operation of its software and through the emails she sent it, aware of the hours Ms O’Hara was working and took no steps to curtail the time she spent working.

‘Not a normal person’

A lesbian worker at a large retailer/service station operator was awarded €8,000 after a co-worker told her she was “not a normal person” and asked her why she did not ‘want’ men.

WRC adjudication officer Patsy Doyle found that the employer did discriminate against the woman in respect of harassment and sexual harassment on the grounds of her sexuality.

She said the woman was left hurt and humiliated over the words directed towards her by a colleague, Mr A.

Ms Doyle said she also “found evidence of a workplace culture where casual talk on highly personal and sensitive issues was permitted without redirection”.

Ms Doyle has also directed that the retailer secure a written apology from Mr A, who sexually harassed the woman, “for the hurt and humiliation caused to the complainant”.

The retail worker also alleged that Mr A attributed mental health issues to gay people in her presence and also claimed that a colleague told her that Mr A linked the origin of homosexuality to child abuse.

The worker told the WRC she found the remarks distressing and escalated the matter into a complaint in May 2017, citing four incidents.

She said she was dissatisfied with the preliminary investigation, which upheld two of the complaints, and she felt that she was not believed.

‘Beautiful eyes’ harassment

A female service station manager was harassed on the grounds of gender after her boss told that she had “beautiful eyes” and criticised her management approach.

The WRC ordered the un-named service station business to pay its former manager €4,000 compensation over the harassment.

The woman claimed harassment on the grounds of gender as a result of a site visit by the business’s area manager to the service station on July 8, 2016.

The woman told the WRC hearing that the way her area manager spoke to and behaved towards her on that date “left her feeling humiliated and undermined”.

She said he made inappropriate comments in relation to how she performed in her role, suggesting she should take a “step down” and threatening her with disciplinary action if she refused. He also told her staff had no respect for her. During the same encounter, he told her she had “beautiful eyes”.

The service station manager made an internal complaint. In an email to the company’s HR department, the area manager accepted that he had commented on the woman’s eyes.

WRC adjudication officer Andrew Heavey said: “I find that, within the context and tone of that conversations during the site visit, the complainant was justified in feeling uncomfortable with that remark.”

He said he was satisfied “that the conduct of the area manager towards the complainant was harassing in nature”.

Mr Heavey said that the area manager made references to his own wife and her personality traits when discussing the complainant’s management style.

“On that basis I find that the complainant’s gender was a significant factor in the area manager’s attitude towards her,” said Mr Heavey.

Sacked while pregnant

A coffee house and restaurant was ordered to pay a sacked assistant manager €15,000 after it was found to have discriminated against her when sacking her while pregnant.

WRC adjudication officer Ewa Sobanska found the coffee house discriminated against its employee by failing to afford her with the opportunity to return to work after a period of illness while pregnant.

The woman became unwell and obtained a sick cert from her GP from July 7, 2017, until August 21, 2017. She said she told the coffee house manage on July 22, 2017, that she was pregnant.

The worker said she met with the manager on August 22, 2017, and advised that she was now fit to return to work.

She asked if it would be possible for her to start work at 9.15am-9.30am and not at 8am as she had done previously, as her family circumstances had changed.

The worker met again with her manager on August 24 and was told that circumstances had changed and the coffee house was letting her go as she was no longer flexible and she did not pass her probationary period.

Ms Sobanska said: “Having regard to the totality of the evidence before me, I am of the view that the complainant has made out a prima facie case of discrimination on the gender ground.”

Brillo pad cleaning row

A council contract worker was fired after a row with his boss when he misunderstood that he and a colleague were required to get down on their hands and knees and clean a 40 sq m floor area with Brillo pads.

The row began between the man and his boss at a visitor centre in June 2017.

WRC adjudication officer Penelope McGrath said the worker “was most unhappy at being asked to get down on his hands and knees to scrub the floor with a Brillo pad”.

She said: “He felt it was demeaning to him and that his meagre pay did not justify this direction.”

In the case, Ms McGrath found that the worker was unfairly dismissed and awarded him €280.

Ms McGrath said she found the sanction to sack the worker “to have been unduly harsh in all the circumstances and believe a warning would have been sufficient, especially in light of the fact that the complainant only had a further two to three months to run on the 22-month contract”.

The award was comparatively small as the man was on the social employment initiative “Gateway”.

Ms McGrath said that during the disciplinary process, the supervisor did not seek to understand how the sacked worker came to misunderstand that the entire floor was to be cleaned using Brillo pads.

In this regard, Ms McGrath noted that it was only before the WRC that the sacked man’s work colleague was asked and it came to light about the fact that he was cleaning the floor area — and not the steps — with a Brillo pad. Ms McGrath said that this crucial point was therefore missed in the investigation, at the disciplinary meeting and on appeal.

‘Moonlighting’ driver

Luas operator Transdev sacked a driver after finding that he was ‘moonlighting’ as a taxi driver in his wife’s licensed taxi.

Following a tip-off, Transdev hired a private investigator (PI), who placed the driver under surveillance.

The PI observed the employee accepting a number of fares and also hailed the ‘taxi driver’ to become a passenger in his cab and paid a €5 fare.

The Luas driver was sacked for gross misconduct after two internal appeals, including one to Transdev’s managing director, failed.

Transdev found the ‘moonlighting’ was gross misconduct.

The Luas driver sued for unfair dismissal and the WRC has found that the dismissal was fair, upholding Transdev’s decision.

WRC adjudication officer Pat Brady said the driver’s position “as a public transport driver requires a high level of application and concentration. He may have the safety of a very large number of members of the public, who are his passengers, in his hands.

“Any external work unknown to the company in addition to permitted overtime would create an even greater risk to passenger safety.”

Attempt to punch youth

A Luas ticket inspector who attempted to punch a youth with a ‘wild swipe’ after being called a ‘Paki bastard’ lost his unfair dismissal claim.

The Labour Court found Adil Shafiq’s claim for unfair dismissal from Transdev was not well founded. Its ruling upheld an earlier dismissal ruling by WRC adjudication officer Penelope McGrath.

Disciplinary proceedings were brought against Mr Shafiq after a youth complained to Transdev that he had been punched on the back of the head by a Luas staff member on August 24, 2015.

The youth said he had paid for his Luas ticket and had no prior interaction with the staff member on the night.

Mr Shafiq said he boarded the St Stephen’s Green-bound Luas at Cowper and there was a group of youths on board who did not have tickets.

He said he was required to issue them with a Standard Fare Notice and in response, some made rude gestures to him, others pretended to be asleep, or were drinking alcohol.

He asked the group of youths to disembark at the next stop and in response, he was verbally abused and called a ‘Paki bastard’.

Mr Shafiq admitted he had raised his hand behind one of the youths but denied that he hit, threatened, or verbally threatened him.

In its findings, the Labour Court found the CCTV footage of the incident undoubtedly shows Mr Shafiq “acting in a manner that is totally at odds with the conflict management training that he fully accepts he received periodically throughout the course of his employment”.

Sacking was correct

The WRC found a Dublin Airport-based services firm was correct when sacking an aircraft cleaner who pocketed a passenger’s €600 mobile phone found left behind on an aircraft.

The worker sued for unfair dismissal and claimed he “inadvertently brought the phone home” at the end of his shift after placing it in his pocket earlier that day when finding it on the aircraft.

However, the game was up for the worker after the phone’s tracking technology resulted in representatives of the phone-owner turning up at the front door of his home the next day seeking the return of the phone.

The worker handed over the phone and apologised.

He was placed on paid suspension by his employer as the company investigated the circumstances. The company held a disciplinary hearing on August 3 and following this hearing, he was dismissed on August 9 and the dismissal was upheld on appeal on August 24.

The worker was represented by Siptu in the case and he claimed that the dismissal “was completely unwarranted and grossly disproportionate” while the lengthy suspension prior to the dismissal “was punitive and equally disproportionate”.

WRC adjudication officer Michael McEntee said he came to the view that the decision to dismiss, while harsh for the worker, came within the band of reasonableness.

Working order

Making a complaint to the Workplace Relations Commission about a grievance with an employer is designed to be a simple process, one that individuals with no legal expertise can carry out themselves.

It begins with completing a complaints form available online or by contacting the WRC, and an assessment will take place then as to how best to proceed.

It may be the WRC believes the issue could be resolved by way of mediation and, if both sides agree, that will be the first step. Or it may be a more serious or entrenched matter that will require a hearing before an adjudication officer, who will then make a ruling.

If the issue appears very serious or involves workplace practices that affect a number of employees, the WRC may dispatch an inspector to investigate, with powers to inspect and/or remove records, documents, or other materials and to interview personnel.

The decision made by an adjudicator may be appealed to the Labour Court. Where a decision is not complied with, a complainant can seek a District Court order to comply.

The WRC maintains a panel of regional adjudicators who can hear cases anywhere in the country. Most complaints are dealt with within six months if there are no adjournment requests from either side.

The rulings from the WRC published here are just a small sample of its work — it produces 20 such rulings a day for a start.

Last year it received 14,001 complaints, of which 7,300 were referred for adjudication. The single biggest issue was around pay, accounting for 27% of all complaints. The WRC recovered €1.8m in unpaid wages for complainants during the year.

The other main issues arose in fairly equal numbers: Unfair dismissal, 14%; working time, 13%; and discrimination/equality, 11%. The WRC also carried out 4,747 inspections and took 125 prosecutions.

But the WRC also provides a wealth of information to employers and employees about the legislation that governs their rights and responsibilities, as well as guidance on how to negotiate changes in relations.

The materials are available at workplacerelations.ie, but paper copies of booklets can also be requested on locall 1890 80 80 90, which is also the number for general queries on all aspects of the WRC’s work and the assistance it provides.


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