ADJUDICATION OFFICER Recommendation

Adjudication Decision Reference: ADJ-00005214

Dispute for Resolution:

Date of Adjudication Hearing: 26/01/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act, 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The claimant completed his apprenticeship with the respondent and subsequently continued to work as a Stone mason in B town some 1 hr and 10 minutes from his home since August 2007. As he had done his apprenticeship in A town and lived in A town it had always been his stated intention to re-locate to A town. He understood that he had the understanding and support of his managers in this as he had been told that he was next in line for a transfer should the opportunity arise.

In January 2015, the claimant learned that a staff member junior to him in B town had secured a transfer to A town. He addressed this with his managers, only to be told that he was not on the transfer list. He was aggrieved at being overtaken in this way and together with his union raised a grievance on 15 January 2015.He sought confirmation that he was actually on the transfer list to A town?

The claimant submitted that he had some conflict with his foreman in B town and this was recorded with management in March 2015. He contended that the problems securing his requested transfer stemmed from this. In addition, he had concerns that 4 apprentices currently in training in A town would also be accommodated in A town before him.

There was some delay in being heard in relation to the grievance and the claim was referred to the WRC on 16 September, 2016. The parties eventually met on September 30, 2016. There was a further delay in securing an outcome to this meeting, which was received on 18 October 2016 which did not resolve the issue.

The claimant confirmed that he was now established on the transfer list for A town. The Union, on behalf of the claimant sought a guarantee from the company that he would be the next employee to be issued with a transfer to A town when the vacancy arises, in the event that an immediate transfer is not viable.

Respondent’s Submission and Presentation:

The respondent outlined that the Service was supportive of the claimants desire to transfer to A town .They contended that the service had not been in a position to facilitate the claimants transfer request but would seek to do so as soon as the transfer could be accommodated while meeting the workforce planning requirements and achieving the operational requirements of the service.

The service transfer policy was outlined to the hearing.

By way of background, the respondent outlined that by 31 July 2014, the respondent had three applications on file to secure a transfer from B town to A town. One applicant was senior and one was junior to the claimant.

The respondent stated that they were obliged to deal with a transfer request from one of the applicants on an exceptional needs basis effective from 12 January 2015. This coincided with a retirement in A town .This effectively reduced the Stonemason compliment at B town as resources were not available to allow the provision of a replacement for B town.

The respondent confirmed reception of the claimants grievance on 19^th March,2016.The parties eventually met on September 30 .The respondent understood that this meeting was not a hearing in the context of the grievance procedure .The respondent responded to the Union on 18 October, setting out the position in relation to enquiries made on 30 September . They received confirmation that the matter was before the WRC on this date.

The respondent understood that the complainant was aggrieved that a colleague with less service than him achieved a transfer from B to A town .The respondent confirmed that they take on board factors such as seniority of applicants, the decision as to whether it can facilitate a transfer is undertaken primarily in line with the stated Transfer Policy .The vacancy created by the transferee in 2015 had remained vacant since.

There were no applications on file for transfers from A town to B town, neither were there current fillable vacancies in A town. The respondent had analysed the workforce plan and had predicted a possible retirement during the course of 2018 or 2019.They were not in a position to guarantee this to the claimant, but undertook to facilitate the transfer request at the earliest possible opportunity.

Recommendation :

Section 13 of the Industrial Relations Act, 1969 requires me to investigate this dispute and make a recommendation to the parties .

(3) ( a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

I have considered the written and oral presentations of the parties . Overall, I found that I heard from two parties who wished to resolve the issue. This was welcome.

On the claimants side, he was feeling the pressure of the 2.5 hr roundtrip per day from his home to work .However, his core grievance was his strongly held view that his application for transfer was “first in time” over all three applicants and there was a perceived lack of transparency in the respondents decision making, the result of which he considered that he was in “no mans land” regarding his long awaited and much needed transfer.

On the respondent’s side, they considered that they had acted in good faith by accelerating a transfer opportunity for an applicant with extenuating circumstances .They had no desire to obstruct the claimant’s passage to A town but circumstances prevented this in the short to medium term outside the projected retirement at A town. The respondent gave a firm undertaking at the hearing that there was no set of circumstances whereby the Apprentices in training could undermine the claimants transfer to A town.

For my part, I found a lack of clarity in the respondents stated Transfer Policy . I accept the claimant’s evidence that he received assurances from 2007 onwards that the respondent was aware of his desire to transfer to A town. There were only two bases open to the claimant within the county. The respondent confirmed that the claimant had transferred temporarily outside the county in 2015, but had returned to B town.

I am satisfied that a grievance was raised to address the perceived “leap-frogging “in March 2015. There was an in-ordinate delay before the engagement in September 2016. There was a clear dispute on a mutually acceptable course of action at the hearing.

I make the following recommendation in a bid to focus the parties on moving forward in this matter, mindful that a certain amount of disappointment exists on both sides, but certain of both parties commitment to the service and the claimant’s desire for an action plan. I make the recommendations to address the lack of clarity and unfairness in the procedural delays in management of the grievance that led to this dispute in addition to assisting the respondent address the administrative requirements necessary to underpin a resolution of the matter.

1.  I recommend that the respondent formalises the Transfer Policy and incorporates it by amendment of Section 5 of the Claimants contract dated 12 September 2007.

2. I recommend that the respondent issues "a letter of comfort" to the claimant confirming that he will be facilitated immediately in A town on the anticipated retirement date of his colleague, discussed at the hearing. Any preparatory work on seeking approval for back filling of this position must preface the retirement to allow for a seamless transition for the claimant and an opportunity for the respondent to maintain staffing levels at B town.

In the event, for any reason, the respondent is faced with a vacancy at A town in the interim, I believe it to be fair and reasonable for the respondent to assign the claimant to this position.

Patsy Doyle, Adjudicator .

Dated:   27^th April 2017