ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002953

Dispute for Resolution:

Date of Adjudication Hearing: 22/07/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 and the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 26^th April 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.

Complainant’s Submission and Presentation:

The Complainant sought resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to a long-running dispute centering around his treatment by the Respondent and transfer to a temporary work location persisting for over three years. This has affected him adversely, both in the workplace and personally resulting in two periods of sick leave. The Complainant is seeking reinstatement to his former location of work and financial compensation.

The Complainant’s Union Representative outlined the background to this dispute. The Complainant has been employed by the Respondent on various contracts since 1996 and was appointed to his current role as a Warden in 2001. He had an unblemished work record until he received a verbal warning for his second period of sick leave on 27^th November 2013. In May 2012, he had pursued a legitimate grievance against his line manager in his former work location (Area A) for using CCTV to monitor his time-keeping in breach of agreed procedures and/or Data Protection legislation. He went on sick leave from June-October 2012 whilst this process took its course and although not totally satisfied with the final outcome acknowledging a breach in procedures and assuring that it would not happen again, he felt that it was in his best interests not to pursue the matter any further.  

On 6^th March 2013, the Complainant was asked to attend a meeting with the Area Manager for Area A and Area B. He was informed that he would be reassigned from Area A to Area B on a temporary basis for an initial period of six months to assist with setting up an Action Group as Area B had been identified as a problem area. This temporary arrangement has been renewed at six monthly intervals without any consultation with him. The Complainant feels that he has been singled out and victimised and the transfer was punishment for pursuing his grievance. His other colleague in Area A had not been reassigned and no other Wardens have ever been transferred in this manner.

The Union objected to this ongoing arrangement on the basis that it was contrary to a 2011 Collective Agreement which clearly intended each Warden to have a definitive work location stating: “Each X Warden will have a definitive work location.”. Numerous representations to this effect were made. The Union also contended that as Wardens for all the areas combined operated as a pool, the temporary assignments should have been rotated and selection of staff for temporary assignments should be fair and transparent. Following discussions with management, a truce of sorts was reached whereby the Complainant continued to report to Area A (where his changing facilities and locker are located) and collect his van and drive to Area B to undertake his day’s work. This entails an extra hour of travel on the Respondent’s time in the morning and an extra hour in the evening on the Complainant’s time. In September 2013 when the Complainant attended at the office in Area A to use the computer as his work phone had broken, he was approached by the SEO and told that he should not be there as he was not assigned there and was asked to leave. This incident again left the Complainant feeling victimised and he went on the second period of sick leave due to work related stress from September-November 2013. This resulted in the Complainant receiving the verbal warning of 27^th November 2013 upheld on appeal and again he chose not to pursue this further.

The Complainant and his Union have consistently maintained that he should be allowed to revert back to his designated workplace in Area A but despite numerous requests this has been refused. In March 2015, he received a request to clear out his desk in Area A. More recently, he has received tersely worded correspondence from management requesting that he reports directly to Area B and parks his van there. Correspondence regarding the nature of his assignment would also tend to indicate that the Complainant is still subject to a reviewable temporary reassignment. The Complainant confirmed that he had only looked into using the office based in Area B on two occasions and had felt that it was too small to accommodate his needs as it was shared with another Warden. In any event the Respondent had never provided him with a key to that office. Although he has no particular difficulty with working in Area B and is not taking particular issue with the extra commute, he is aggrieved at the manner in which he has been transferred and therefore seeks reinstatement back to his former Area A where he had established a good rapport over the years.

Respondent’s Submission and Presentation:

The Employee Relations Manager for the Respondent set out its position strongly refuting the Complainant’s contention that he was transferred in retaliation for his grievance as outlined above. Originally all the Wardens for the Local Authority in question had been based in a centralised location but were assigned to a number of different area teams under the 2011 Collective Agreement. As evidenced in its minutes of the meeting of 6^th March 2013 between the Complainant and the Area Manager, the Complainant had been informed of good operational reasons for his temporary reassignment from Area A to Area B. As Area B had been identified as a black spot requiring the setting up of an Action Group, it was necessary to move one of two full-time Wardens from Area A to Area B to meet this need. The Area Manager could only use staff resources within these Areas under his auspices. He had originally offered the reassignment to the Complainant’s more senior colleague who had declined the move as it would have affected his terms and conditions. He informed the Complainant that he had a pressing need to strengthen the Enforcement Unit in Area B and with his experience and knowledge of the job he would be a valuable asset. He also told him that that reassignment was for an initial period of six months, which would be reviewed having regard to the extent of the problem existing in Area B on the review date. The Complainant’s internal appeal against his reassignment was rejected on the basis that it was for good operational reasons and he had been fairly selected from the available resources. The Respondent contends that the six monthly reviews were considered fairly and his reassignment was extended owing to the persisting problem in Area B and also that Area A had its full compliment.

The Respondent also relies upon the terms of the 2011 Collective Agreement in question which state that Wardens may be reassigned to another area for operational reasons and it would not be possible to function otherwise. The Respondent also relies upon the undisputed mobility clause contained in all its employment contracts and asks that this claim not be upheld. The Respondent’s position is that Area B is now in fact the Complainant’s designated location of work and accordingly he should report there. However, it was accepted that he had never been consulted in relation to an office space there. It was also confirmed that the Respondent has limited resources arising from the moratorium in Civil Service appointments and further collective talks regarding the positions of the Respondent’s Wardens in general are planned and may lead to a change in future work structures.

Findings and Conclusions:

Having heard from both Parties and considered all of the evidence and relevant documentation relied upon, I am satisfied:

(1) That although Wardens are entitled to a designated work location, that they could be reassigned for operational reasons under both the 2011 Collective Agreement and their contract of employment. I am also satisfied that the reassignment of the Complainant from Area A to Area B was for good operational reasons as Area B is indisputably a black spot. I accept the Respondent’s evidence that once his more senior colleague had rejected the offer of a reassignment, that he was the only available suitable person who could fill the position and was not singled out. Although the timing with his legitimate grievance was rather unfortunate, I note that there had been a three month lapse of time between the completion of the grievance process in question and his temporary reassignment from Area A to Area B. I am also satisfied that the Respondent’s reasons for retaining the Complainant in Area B owing to persisting problems in that Area are bone fide. For these reasons, I am not minded to recommend the Complainant’s reinstatement back to Area A.

(2) Although the 2011 Collective Agreement allows for the reassignment of Wardens to other areas for operational reasons, it does not provide for multiple renewals of a temporary reassignment such as the Complainant’s situation. Although cognisant of the Respondent’s resource issues, I am of the view that this has justifiably given rise to his perceived sense of injustice, unfair treatment and sense of not belonging to any particular area. Reluctant to take up the initial reassignment, he has continued to report to Area A in the hope that he will be reinstated back there. Whilst the Complainant has not requested an office base in Area B, neither has he been consulted by the Respondent in relation to same or been offered a key. Whilst he feels he does not belong in Area B, he also feels rejected from Area A following the incident in September 2013 when he was asked to leave the office and demands have been made that he clear his desk there. Coupled with his previous grievance, this has given rise to a sense of victimisation. He has clearly been very affected by this situation resulting in his two periods of sick leave. This situation is aggravated with each renewal of his temporary reassignment without consultation and matters have come to a head.

(3) That the Respondent’s handling of this matter has not been motivated by any particular ill-intent against the Complainant but arises from having to spread its limited resources thinly and the absence of clear procedures for dealing with temporary reassignments in the 2011 Collective Agreement. The Respondent clearly values the Complainant as borne out by its minutes of the 6^th March 2013 meeting and that is why he has been retained in Area B, a particularly challenging area with persisting problems. Unfortunately this has been lost as both sides have become entrenched in their respective positions and the tersely worded exchange of correspondence has only served to exacerbate the situation. Both Parties are agreed that the time lost by the dual reporting arrangement does not make sense where resources are already limited and cannot continue.

(4) That as a valued long-term permanent employee, the Complainant is entitled to some certainty as to his designated location of work regardless of the terms of the 2011 Collective Agreement and the repeated renewals of his temporary reassignment are therefore unreasonable and unfair.

Recommendations:

Based on the aforesaid findings and conclusions, I recommend the following course of action:

(1) That the Respondent confirms in writing to both the Complainant and his Union that his designated location of work is Area B, subject to the terms of his employment contract, 2011 Collective Agreement and any future agreements, within 42 days of the date herewith.

(2) That within 42 days of the date hereof, the appropriate representative of the Respondent meets with the Complainant to assess his changing, office and parking facility needs in Area B and strives to make satisfactory arrangements to meet same. Failing agreement, this matter may be remitted back to the WRC by either Party as a new dispute with particular reference to these recommendations.

(3) That once such satisfactory arrangements are in place, the Complainant reports directly to Area B and also collects his van from Area B at his agreed/contracted starting time of work. The Complainant must also collect any remaining belongings from Area A including the office.

(4) That no further reviews of the Complainant’s position be conducted unless the Warden needs of Areas A or B change. In the event of a suitable Warden position becoming available in Area A, that the Complainant will be offered first refusal without any loss in terms and conditions and if taken up, his existing position in Area B should filled in accordance with applicable recruitment procedures.

(5) That any further reassignments of the Complainant are conducted in full consultation with the Complainant and/or his Union including obtaining and considering his position in relation to same.

(6) That the Respondent pay the Complainant €3500 net (comprising of €500 for each six month period or part thereof after all lawful deductions) in compensation within 42 days of the date hereof.

(7) That the Respondent considers putting in place clear written procedures for dealing with the temporary reassignment of Wardens between its various areas in any future collective agreements.

(8) That the status quo between the Parties be maintained including the current dual reporting arrangements in the event of an appeal to the Labour Court by either Party, pending its finalisation.

Dated: 2^nd September 2016