FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NUIG (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Reinstatement of salary and expenses.
BACKGROUND:
2. The case concerns a dispute between the National University of Ireland, Galway (NUIG) and the worker, in relation to re-instatement to a previously held grade and the payment of travel expenses as a result of a change in work location.
The worker contends that he applied for a transfer from his work location in Carna to the University Campus on the basis of difficulties experienced while working in Carna. The role that he transferred into was a less senior role (Senior Technical Officer). The worker is seeking that he be replaced on the Chief Technical Officer grade in his current role on a red circled basis and that he be paid travel expenses incurred as a result of the change in work location.
Management reject the workers claim in its entirety. Management contend that the worker knew the different rate of pay for the role in which he was transferring into and was well aware that no travelling expenses would be paid. Management further contend that the worker did not formerly raise any issues in relation to his alleged difficulties until after he was transferred, so at that point nothing could be done.
On the 2nd April 2012 the worker referred the matter to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation .
A Labour Court hearing took place on 17th October, 2012.
UNION'S ARGUMENTS:
3. 1. The worker had no option but to seek a transfer as a result of the continuing difficulties he experienced while working in Carna.
2. He did not make any formal complaint while he was still located there for fear that relationships would deteriorate further.
3. It is unreasonable for the worker to transfer work location and to be paid a lower rate of pay and to incur additional expenses as well. The worker's claim to be re-instated to the higher grade and paid travel expenses is fair and reasonable in all the circumstance of the case.
MANAGEMENT'S ARGUMENTS:
4. 1.The worker never raised any issues formally with Management in relation to the alleged difficulties he was experiencing. It is unreasonable to suggest these difficulties as the reason for transferring, having not sought the assistance of Management in resolving the issues prior to the transfer.
2. The worker was well aware that the role to which he was transferring into was at a less senior level and attracted a lower rate of pay.
3. In correspondence to the claimant in March 2010, it was clearly stated that the transfer would not qualify for the payment of travel expenses. In addition the temporary nature of the transfer was stated to the worker and he could have been re-assigned to his original post in Carna but instead choose to remain on campus and pursue the issue in this manner.
RECOMMENDATION:
The case before the Court brought under Section 20(1) of the Industrial Relations Acts concerns the Claimant's claim to be re-instated to his position as Chief Technical Officer within the University, with the appropriate salary. Furthermore, he sought payment of travel expenses incurred due to his relocation from Carna to the University campus in Galway in March 2010.
The Claimant told the Court that the reason he sought to move from Carna was due to difficult working relations he experienced there. He submitted that he did not seek to be redeployed to a lower grade and he now seeks to be red-circled in his chief Technical Officer role as he maintained that he transferred under duress. Following his transfer the Claimant submitted a complaint to management under the University's Bullying and Harassment Policy. A formal investigation was carried out by an external investigator into the alleged bullying and harassment complaint. While the investigation did not uphold his complaint it did recognise that both parties were distressed by the fact that their differences had reached the point of a formal complaint being made.
Having considered the extensive submissions of both parties, the Court is satisfied that the Claimant's change in status came about as a result of his application for a transfer from his position as Chief Technical Officer when he accepted a transfer to a position as Senior Technical Officer in the School of Natural Sciences at the University campus in Galway, which took effect from 12th April 2010. In its letter to the Claimant dated 30th March 2010 it clearly stated that his application was on a temporary basis from April 2010 until December 2010, when both parties had the opportunity to terminate/rescind/withdraw from the transfer arrangement, in which case he could be assigned back to his role as Chief Technical Officer in Carna or his position would become permanent in the School of Natural Resources. The letter also specified that no travel expenses would be paid as part of the transfer. The Claimant did not raise any issue relating to the terms contained in the letter dated 30th March 2010 until some nine months later when he was contacted with regard to his transfer becoming permanent or not that he requested the University to change his terms of transfer to 'personal to holder' as a Chief Technical Officer.
As the Claimant did not seek to revert back to Carna his position in the School of Natural Resources became permanent with effect from 1st January 2011.
The Court is not satisfied that the Claimant put the University on notice that he was moving under duress. It is satisfied that the move was not a redeployment by the University but concession of an application made by the Claimant for a transfer first made as far back as June 2008, the terms of which were clearly set out in the letter dated 30th March 2010. Therefore, the Court does not find in favour of the Claimant's claim.
However, the Court recommends that in the event of a suitable vacancy arising at Chief Technical Officer level then the Court wishes to draw attention to the concluding observations made by the external investigator in her report on the alleged bullying and harassment complaint made by the Claimant - "neither party to this complaint should
suffer any diminution in reputation or opportunities as a result of engaging in this process".
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th November, 2012.______________________
AH.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.