ADJUDICATION OFFICER RECOMMENDATION

Adjudication Recommendation Reference: ADJ-00002447

Dispute for Resolution:

Dates of Adjudication Hearing: 21/07/2016 & 29/08/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended), following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 22^nd March 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. There was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. The Complainant was represented by his Trade Union and an Employee Relations Manager represented the Respondent. I part-heard the dispute on 21^st July 2016 and adjourned the hearing to enable both Parties to obtain and furnish further information. I concluded the hearing on 29^th August 2016. In arriving at a recommendation, I carefully considered all of the submissions, documentation and evidence presented at the hearings.  

Complainant’s Submission and Presentation:

The Parties are seeking resolution to a dispute whereby all internal procedures have been exhausted. The Respondent has sought to remove use of a company vehicle from the Complainant upon transfer to another Depot and he is seeking retention of same or compensation in lieu. The Complainant has been adversely affected by the dispute and on several periods of related sick leave.

By way of background, the Complainant has been employed by the Respondent on a series of temporary contracts since 2005 and received a permanent contract in 2011 as a Machinery Driver based in Depot A. Since 2005, he has had the use of a company truck/van which he used for various tasks including towing machinery, checking jobs and travelling to/from jobs. The Complainant also used the vehicle to travel to and from work. He lives 80km from work in a remote countryside location without access to public transport. The Respondent bore the running costs. This represents a significant benefit to the Complainant which he has become reliant upon over the years, particularly as his wife is a full-time homemaker and carer for their children, one of whom is disabled and she requires the family car to transport them around. It is important to note that apart from travel to/from work, the Complainant did not use the company vehicle for any other personal travel.

In December 2015, he received a letter from the Respondent stating that he was to be transferred along with his machine from Depot A to Depot B with immediate effect. This was because the use of his machine was no longer required by Depot A, but was required by Depot B where they were having to hire in such machinery and represented a rationalisation of resources to the Respondent. Whilst he took no issue with the Respondent’s entitlement to transfer him under his contract of employment, the Complainant raised a number of concerns as to how the transfer would affect his terms and conditions of employment. By email dated 16^th December 2016 from HR, he received confirmation from the Respondent that: “Your terms and conditions of employment remain unchanged”. However it materialised that he would no longer have use of a company vehicle as it was required by Depot A, along with a number of other issues affecting his terms and conditions upon transfer. Whilst the other issues were resolved during local talks, the proposed removal of the vehicle remains in dispute. Notwithstanding that the Complainant is in receipt of a travel allowance and the entitlement to the use of the vehicle is not expressly in his contract, the Union contend that the use of the vehicle has become a well-established term and condition of his contract by virtue of custom and practice. Loss of its use would impose substantial financial hardship to the Complainant and his family. It would necessitate purchase of a private vehicle and associated costs to commute to and from work, representing a 20% reduction in salary on top of the reduction of approximately 40% suffered over the last number of years. It was also submitted that there were many other employees of the Respondent with use of a work vehicle, to commute to and from work, the number of which was somewhat disputed but the Respondent accepted that it was a substantial number. It is submitted that by virtue of his transfer, the Complainant is being singled out for the loss of this benefit when the bigger issue of this continuing practice has not been addressed. It was further submitted that removal of the use of the vehicle was in contravention of the Complainant’s terms and conditions and written reassurances that there would be no change in his terms and conditions arising from the transfer, as well as being unfair and financially burdensome.

Upon my request for clarification of the loss of the work vehicle to the Complainant in monetary terms, the Union furnished figures confirming that an equivalent replacement vehicle would cost circa €17,000 and the annual cost of running it would be €8,905, giving a first year cost of €25,905.

Respondent’s Submission and Presentation:

The Respondent concurred with the aforesaid work history and reason for the Complainant’s transfer from Depot A to Depot B along with a background to the dispute regarding use of the company vehicle. It has written to the Complainant requesting its return but the status quo has been maintained pending the resolution of this dispute in accordance with agreed procedures.

The Respondent contends that the use of the company vehicle does not form part of the terms and conditions of the Complainant’s contract as it is not an express term and does not meet the criteria for a term implied by custom and practice. Reference was made to the test in O’Reilly -v- Irish Press (1937) 71 ILTR 194 as being: “…so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties.”.

It was also argued that there was no precedent for an employee bringing a company vehicle with them upon transfer from one Depot to another, that the cost of the vehicle is funded with tax-payers’ money to assist with the services provided by Depot A and its continued use by the Complainant in Depot B would not stand up to audit, whether local or national. In any event, he is already in receipt of an annual travel allowance (currently €3,538) since commencing employment.

Upon my request for clarification of the loss of the company vehicle to the Complainant in monetary terms, the Respondent furnished figures confirming that an equivalent replacement vehicle would cost circa €3,300 and the annual cost of running it would be €2,522, giving a first year cost of €5,822. I also asked the Respondent to furnish costings for the savings made by virtue of the Complainant’s transfer but the fact that he had been on sick leave and other factors made this difficult to ascertain.

When questioned, the Employee Relations Manager confirmed that the practice of allowing employees to use the vehicle to drive to and from work arose from the need to have such vehicles kept overnight in a secure location. He disputed the Union’s contention that the vehicle would still be required by the Complainant to travel to/from sites within Depot B as there is other transport available. He also acknowledged that there was a bigger issue of a number of Local Authority employees being allowed to retain company vehicles for travel to and from work and confirmed that there were no immediate plans to address this issue. He confirmed that there had been one instance whereby an employee had surrendered use of a company vehicle upon a voluntary transfer but that this was the first time that the issue had arisen in relation to a compulsory transfer.

Reasoning & Findings:

Having listened to both sides carefully and weighed up all the evidence adduced, I am satisfied that:

(1) After 12 years, the unconditional use of the company vehicle for travel to and from work has become an implied condition of the Complainant’s terms and conditions of employment by virtue of custom and practice and it is difficult to imagine a better example of the test in O’Reilly -v- Irish Press (1937). Having so found, it follows that the existence of a travel allowance or the extent to which the company vehicle is still required for his work in Depot B are irrelevant considerations.

(2) There is no issue with the standard contractual term allowing the Respondent to transfer employees for operational reasons subject to their terms and conditions remaining the same. However, the loss of the use of the company vehicle represents a significant financial detriment to the Complainant as he travels 80km to and from work each day and cannot access public transport. He would have to purchase an alternative vehicle and bear the running costs of same. Although there are a number of other employees in the same position as the Complainant, to date he is the only one adversely affected by virtue of his compulsory transfer from Depot A to Depot B.

(3) It is clear that the Respondent has acquiesced in the practice of allowing employees to use company vehicles to travel to and from work for its own necessity and does not have in place any guidelines or arrangements for addressing the loss of same when an employee is being transferred.

(4) Allowing the continued use of company vehicles by employees perpetually in such circumstances represents a significant difficulty for the Respondent in terms of auditing and public accountability. However in the interests of fairness and ensuring no loss of terms and conditions upon an internal transfer, this practice should be addressed globally rather than via an individual situation such as this case. I fully acknowledge that any arrangements to address the ongoing issue of the use of company vehicles for travel to/from work by employees may be subject to talks with the Union/s involved and recommendations as to how this might be achieved are outside the remit of this particular dispute.

(5) Until this issue is addressed across the board within the Local Authority in question, the Complainant should therefore be allowed to retain the use of a company vehicle on the same terms on his transfer from Depot A to Depot B or to compensation in lieu of the use of same.

Recommendations:

Based upon the aforesaid and at the Respondent’s election in writing to the Complainant and/or the Union on his behalf within 14 days of the date of this decision, I recommend the following:

(1) That the Complainant be allowed the continued use of a company vehicle on his transfer from Depot A to Depot B on the existing terms until this practice is addressed globally and provision made for such transfers in respect of all employees of the Respondent subject to this practice, or

(2) That the Respondent pay the Complainant a once-off sum of compensation (after all deductions) of €15,000 in lieu of the use of a company vehicle, being the approximate difference between the first year costs presented by the Parties, within 42 days hereof. In arriving at this figure, I have also balanced the fact that the Complainant will own any vehicle purchased with this money as against the potential costs of funding his own travel to work into the future. If the Respondent elects for this option, the Complainant must deliver up the vehicle within 72 hours of full payment thereof, or

(3) That the Respondent pays the Complainant a sum of €5,000 per annum or part thereof in compensation (after all deductions) in lieu of the use of the company vehicle until this practice is addressed in respect of all affected employees, within 42 days hereof. If the Respondent elects for this option, the Complainant must deliver up the vehicle within 72 hours of full payment thereof.

(4) That the status quo be maintained pending the outcome of any appeal to the Labour Court.

Dated: 10/10/2016