ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00007280

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00009797-001 19/02/2017   Date of Adjudication Hearing: 11/10/2017 Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

Background:

At her own request the complainant was placed on a transfer list in 2003. In 2015 she was informed that she was number 1 on the list for transfer to her preferred location. As part of a national service review the respondent set aside the existing transfer agreement and the complainant did not get the transfer she had anticipated.

Summary of Complainant’s Case:

Following a request shortly after her appointment for a transfer to a different county the complainant received notification on the 3rd December 2003, stating 'your name has been placed on a transfer list and I will contact you in the event of a suitable vacancy arising'. In 2015 the complainant was advised that she was the current No. 1 on the transfer list for her desired location. In 2015, the service of the public sector in which the complainant is employed, commenced a reconfiguration / reassignment of the service nationally, which appears to have set aside the existing transfer list. As a result of this reconfiguration, three other officers who were behind the complainant on the list were given positions in the area to which she had hoped to transfer and the complainant was overlooked. The complainant initiated the grievance procedure in 2015 and now is at stage 4 referring the matter to an appropriate third party as the issue remains unresolved.  

Summary of Respondent’s Case:

The reconfiguration plan referred to for the service was circulated on 15th July 2016.   The plan is designed to address historical inequities in staff resources and was framed ‘in the context of an ongoing embargo on recruitment and is therefore focused on redistribution of existing resources’.   Point 5 of the document confirmed that all transfer panels were suspended to facilitate implementation of the plan. This included the transfer plans relating to the complainant’s role. The matter was raised by the complainant under the respondent’s grievance procedure. The finding at stage 3 disallowed the complainant’s appeal referring to the reconfiguration plan. The decision maker went on to draw management’s attention to the commitment in the plan that ‘following reconfiguration a system of staff movement in a national context will be developed’.  The decision maker also drew management’s attention to the fact that the complainant ‘remains on a pre-existing staff transfer panel’ The three staff transferred were done so to meet the business needs of the service.  

Findings and Conclusions:

This matter was referred under the Terms of Employment (Information) Act, 1994 and I must confine my adjudication to the requirements of that Act. The Act specifies the manner and nature of the information that must be given to each employee and nothing has been alleged by the complainant that this was not provided in the first instance by the respondent. In relation to notification of changes to conditions Section 5 of the Act states; Notification of changes. .—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—                                (a) 1 month after the change takes effect, or                                (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.                                (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4 . The issue is not whether the complainant agreed to the change in her conditions but whether she was notified. There may be some argument as to whether or not the reconfiguration plan has the status of a collective agreement and therefore exempt from the requirement for written notification. It is clear from the evidence given by both parties that the complainant was notified on 15th July 2016, through the circulation of the Reconfiguration Plan, and specifically under Point 5 which stated that ‘all transfer panels will be suspended to facilitate implementation of this plan’. I therefore conclude that the complainant was notified appropriately in relation to the change.    

Decision:

Section 41 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. Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act   I declare that the complaint is not well founded.   Dated:   18th December 2017 Workplace Relations Commission Adjudication Officer: Shay Henry Key Words: Term of employment – notification of changes