ADJ-00004269

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004269

Dispute for Resolution:

Date of Adjudication Hearing: 13/12/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 13 of the Industrial Relations Act, 1969 and 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.

Background. 

The Complainant has been employed with the Respondents from 1994 as a Trainee Rigger and in 2003 the Complainant was seconded to a wholly owned subsidiary of one of the named Respondents. He referred a dispute to the Workplace Relations Commission on 27^th July 2016 in relation to his transfer back to the main Respondent.

Summary of Complainant’s Position.

In February 2012 the Complainant raised a complaint against his then Acting named Supervisor. The Complaint related to the Supervisors attitude to him and to ongoing delays in relation to authorising his Travel and Subsistence Claims. Both issues were resolved satisfactorily by Management. In October 2014 this named Acting Supervisor was promoted to Supervisor in the Region where the Complainant was assigned. He alleged that he was increasingly being sent outside of his own region to work and he raised the issue on 9^th December 2014 with his named Line Manager and the HR Manager. At this meeting the Complainant and his SIPTU Representative were informed the Respondent was in possession of a medical letter stating that the Named Supervisor cannot work with the Complainant. The Complainant requested this letter but this was refused.

The Complainant was also informed that following a risk assessment which had been carried out by the second named Respondent, it was decided that the Complainant and the named Supervisor could not work together. The Complainant and the Respondent exchanged correspondence between January and April 2015 but the issue was not resolved. In December 2015 and January 2016 further meetings took place between the Parties. The Complainant invoked the three stage Grievance Procedure on 22^nd January 2016. Following the Stage 2of the procedure the Complainant’s secondment to the second named Respondent was unilaterally terminated.

In October 2015 the Complainant was offered a promotion to another Region as Senior Rigger but he was unable to accept this promotion. The issue of the termination of his secondment was subject to the internal Industrial Tribunal Process following which the Respondents agreed not to fill his vacancy pending the outcome of the referral to the WRC.

SIPTU argued that – there was a breach of the Grievance Procedure – the Complainant was unaware of the risk assessments being carried out – his assignments outside his own region – the Supervisor made no complaint against the Complainant – the medical letter has not been provided to the Complainant.

The Complainant is seeking that the Complainant be assigned back on secondment to his position with the second named Respondent with immediate effect.

Summary of Respondent’s Position.

The Complainant is an employee of the first named Respondent and had been on secondment to the second named Respondent for a number of years. This secondment arrangement was terminated by agreement of both Respondents. This was done for health and safety reasons due to an unacceptable risk to the employees who work in a safety critical environment at heights of up to 1000 ft. There has been no allegation against the Complainant.

The second named Respondent has a separate independent Board of Directors, separate location, and its own corporate identity. It employs 42 employees, and 12 employees are on secondment from Respondent 1. Following a Transfer of Undertaking in 2003 and following discussions with SIPTU it was agreed that the employees of Respondent 1 transferring to Respondent 2 could do so on a secondment basis and the Complainant opted for this secondment arrangement. Therefore the Complainant remains employed by Respondent 1.

An incident occurred in summer 2011 between the Complainant and another named employee which resulted in questions being raised of the ability of both employees to work safely together as a team. This Project was halted pending investigation. The conclusion was that serious health and safety issues existed in relation to both the Complainant and the other named employee working together.

In August 2014 following a Rigging Team Risk Assessment Report in a specified region, it confirmed serious health and safety risks. This report recommended control measures and medication and if mediation failed, separation of team members. In December 2015 a Risk Assessment Report was completed by an External named Consultancy Firm regarding the Complainant and the other named employee. It concluded that the second named Respondent could be in non-compliance with statutory requirements and that the safest practice was that the Complainant and the named employee should not work together.

The Complainant was offered four options to transfer to other roles on 29^th January 2015.The second named Respondent sought for a period of time to roster the Complainant with Contractors and this worked for a while until the Complainant refused to supervise contractors.

The other named Employee was in the meantime promoted to Rigging Supervisor with the second named Respondent in 2016 and this employee could not be transferred back to the first named Respondent as no vacancy existed. The Complainant has refused to engage in mediation on a number of occasions.

Following the referral of a Grievance by the Complainant Stage 1 was heard on 5^th April 2016. The decision was appealed by the Complainant and the outcome of Stage 2 was also appealed by the Complainant and heard on 8^th July 2016. The outcome was to substantially uphold the Respondents positions. Likewise his claim to the Internal Tribunal also failed and the Complainant continues to be employed and a more permanent role identified is currently being explored by the Parties.

Findings.

On the basis of the evidence and written submissions from both Parties, including the outcomes of the internal process I find that the Complainant’s secondment to the second named Respondent was terminated on the basis of a health and safety risk identified by allowing the Complainant and the second named employee to work together.

The evidence by the Respondent and not disputed by the Complainant was that the second named Employee is a Rigger Supervisor with the second named Respondent and that no such position exists with the Respondent 1. Likewise both Parties confirmed that there is no position of Rigger, the position held by the Complainant, with Respondent 1.

Therefore the decision of both Respondents was to transfer the Complainant back to Respondent 1 who remains the Employer of the Complainant.

I note from the evidence that the Respondent 1 has sought to facilitate the Complainant by a range of different options which were not acceptable to the Complainant. These were set out in the letter of 29^th January 2015. – Copy provided to the Hearing. I further note that discussions are ongoing between the parties in relation to a position with Respondent 1 which is currently being explored.

Recommendation. 

I find that the Complainant was transferred from Respondent 2 to Respondent 1 for health and safety reasons following a risk assessment which identified a serious/considerable risk to allowing the Complainant and the other named employee to continue to work together.

Accordingly I do not recommend in favour of the Complainant as to do so would fly in the face of the Risk Assessment carried out.

Rosaleen Glackin

Adjudication Officer

Date:     20^th February 2017