FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WEXFORD COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Double appeal of Recommendation of a Rights Commissioner r-078710-ir-09/MMG.
BACKGROUND:
2. The Worker applied for and was successful for the position of Area Housing Officer for the Gorey area, a post she retained for approximately nine years. After returning from maternity leave she was instructed to relocate to the Wexford Office in the south of the county, she objected to the transfer and appealed the decision to the Director of Services for Housing and later through the formal Grievance Procedure to the Director of Services for Corporate Affairs, however, both upheld the transfer decision.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner issued his Recommendation as follows:-
"Therefore, on reflection and looking at the complexity of this particular matter where the Employee was afforded an appointment and based primarily on being an Area Housing Officer located in Gorey, it would appear unreasonable to ask her to transfer by traversing through another area to the southern area of the county to fulfil this role. Similarly, it would appear to be unreasonable for a Council not to be able to transfer staff as appropriate to fulfil the requirements of the Council.
However, with regards to this specific case and having carefully considered the evidence that has been presented with regard to the multiplicity of documentation and various understandings, I have formed the opinion that the Worker should not be enforced to relocate to Wexford".
On the 8th and 12th January, 2010 the Worker and the Employer respectively appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. However, the Worker did not seek to overturn or vary the Rights Commissioner's Recommendation but instead sought to have it implemented.
A Labour Court hearing took place on the 27th April, 2010.
UNION'S ARGUMENTS:
3. 1. Applications were invited for the post of Area Housing Officer, Gorey Area (Grade V). It is the clear understanding of the Worker that the job she was offered and accepted was specific to the Gorey area
2. There is a lack of consultation and consideration of the Workers situation from a work / life balance perspective as she is required to travel on average an extra 1,800 km per month since April, 2009.
COMPANY'S ARGUMENTS:
4. 1. The post that the Worker was appointed to is generic and is not specifically linked to Gorey, therefore she is eligible to be transferred as any other Area Housing Officer
2.Management of the housing service will benefit from rotation of staff, it is normal practice across all grades throughout the Council. The period already served, nine years in this case, already exceeds what is optimum in this regard.
DECISION:
This is an appeal by the Employer of a Rights Commissioner’s Recommendation, which found that an Employee employed as Area Housing Officer should not be enforced to relocate to Wexford. The Rights Commissioner also held that this Recommendation should have no bearing on the generality of the Council’s requirement for transferability and accountability for the distribution of staff to ensure that full services are provided. Furthermore, he recommended that further consultation and discussions could take place between the parties in the context of his recommendation.
Having considered the submissions of both sides the Court fully accepts the Council’s right to transfer staff in line with its transfer policy. However, the circumstances of this transfer in the context of the personal circumstances involved in the Court’s view supports the findings of the Rights Commissioner’s that the employee should not be enforced to relocate to Wexford. The Court decides that discussions should take place with both sides to arrive at an arrangement suitable to both parties, within a period of 30 days from the date of this Decision.
Accordingly, the Court upholds the Rights Commissioner’s Recommendation. Therefore the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th May, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.