ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004205
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00006084-001 | 22/07/2016 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The Complainant worked for the Respondent for 25 years. They had a contract with a building management company to provide catering services in a restaurant in a large public building. The Complainant worked as a catering assistant in the restaurant. A member of staff of the building management company attended the restaurant for lunch on 11 December 2015. The staff member was unhappy with the service that she received from the Complainant and made a complaint to the building management company. The basis of the complaint was that there was a delay in serving her a portion of gravy and chips and that the Complainant’s attitude towards her was poor. Due to this complaint the Building management company requested that the Complainant be removed from my site, which ultimately occurred. The Complainant also received a warning sanction for 12 months for having a poor attitude to taking instruction and for leaving her working post without permission. The Complainant exhausted the internal appeals process and is querying the warning sanction and removal, because the process was unfair. She submitted that the sanction of removing her from site was disproportionate to the offence. In relation to the other charges she states that the reason that she was away from her work post was because she was being advised by her trade union representative and the Respondent was aware of this. The charge that she displayed a poor attitude towards accepting instructions is denied. |
Respondent’s Submission and Presentation:
The contract between the parties includes a flexibility clause to permit the Respondent to relocate employees.
The building management company, with whom, the Respondent had a catering contract requested that the Complainant be removed from working in the canteen, following a complaint about her from a customer in December 2015.
The Respondent submits that, on foot of the request received from the building management company, they had no alternative but to remove the Complainant from working in the restaurant. She was relocated to work in a canteen in another building in the city centre, in which the Respondents also provided catering services.
The decision came as a result of a request from the client, the building management company, which they, the Respondents, felt compelled to cooperate with or risk damaging the relationship with the client.
The relocation of the Complainant is not a disciplinary sanction, it was done on foot of the request received and relocation is permitted by the employment contract.
The warning in relation to not being at her work post and failing to take reasonable instructions are not seriously contested by the Complainant and should stand.
Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
As a result of the building management company request, the Respondent removed the Complainant from her place of work (one in which she had worked for 6 years and prior to that, in a different building but with the same team, for nineteen years).
This reaction by the building management company, seems an over reaction to minor offence. It certainly would not warrant anything other than a warning. Moving the Complainant away from a team and working environment that she knew, into a new premises with a new team, the members of which she does not know, was a draconian step to take.
Furthermore there is no evidence as to how the request arose. It seems unlikely to me that it would have been made without any telephone or conversational contact between the Respondent and building company before the email was sent, but there was evidence of such communication was given at the hearing. It is as if the email was received, as it were, “out of the blue.”
Yet the complaint was made on 11 December 2015 and the email requesting that the Complainant be removed was sent on 7 January 2015. I find it hard to believe that over a period of three weeks that there was no discussion about this between the Respondent and the manager of the building management company, even with Christmas intervening.
It would not be fair to allow the Respondent to maintain its position that they had no option but to relocate the Complainant when there is no evidence as to how the request came about. The evidence given was that the request was made, unprompted, by the manager of the building management company on 7 January but he did not attend the hearing, to give evidence and no one from the Respondent gave evidence about any discussions between them. The email itself is clearly not capable of being cross examined. The Respondent could have requested the attendance of the the manager of the building management company but that did not occur. If that had occurred, it would have been possible how the request came about, whether it was a decision taken in conjunction with the Respondent and also to ask why this minor offence was reacted to in such a severe manner.
The impact on the working life of the Complainant, as a result of the relocation, has been significant, The relocation is akin to a dismissal, albeit one where she is still being paid. The question has to be asked whether this relocation was a reasonable response to what occurred. The respondent submit that this relocation wasn’t even a sanction, however it certainly has a detrimental effect on the working life of the Complainant, so in that was it is punitive.
The commercial contract that exists between the Respondent and the building management company may be an important one to maintain from the Respondent’s point of view. I appreciate that. I appreciate too that there is a clause in the Complainant’s contract for relocation. However this cannot be in a cavalier way the Respondent describing it as not even “constituting a sanction.” There may well be good cause, for a variety of reasons to relocate an employee. But this was not one.
An employer owes a duty to act reasonably and proportionately to their employee and it can never be the case that merely because the building management company request that something occur that the Respondent must comply. Employees, especially long standing ones, are owed a duty to be stood by, in circumstances where an infraction is so minor. The Complainant was the employee of the Respondent, not the building management company and the Respondent must not delegate the responsibilities that it owes to its employee to a third party, especially when the request is an unreasonable one.
Therefore I recommend that the Complainant be returned to the work location where she was removed from and that her terms and conditions of her employment revert to what they were.
I recommend that the Respondent is entitled to issue a warning in relation to her attitude towards taking instruction from management, in accordance with their disciplinary policy. However I do not recommend any disciplinary action in relation to being away from her working post, as I believe she gave or attempted to give adequate notice to her employer, about having to meet with her trade union advisor.
I find this complaint well founded and award €1000.00 in compensation.
Dated: 04 April 2017