Complainant

Respondent

Anonymised Parties

An Employee

A Local Authority

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-00008673-001

09/12/2016

The Complainant commenced employment with the Respondent in May 2008 in the role of a Community Warden. While the Complainant was initially deployed in a specific electoral area (EA 1), her contract of employment contains a clause where her employer reserves the right to assign her to any location, now or in the future, within the geographic area covered by the Respondent.

In May 2014 the Complainant was advised that she was being transferred to a different electoral area (EA 2). By way of letter dated 22 May 2014 the Complainant appealed her transfer, citing the unreasonable commute, redeployment criteria and the fact that she was not in a position to comply with a specific local requirement pertaining to her proposed new area.

The Complainant provided a letter from her GP supporting the appeal of the transfer from a medical/health perspective. Consequently, the Respondent invited the Complainant to attend for an independent medical assessment, which took place on 10 June 2014. The medical examiner concluded that while the Complainant was currently fit to perform her full duties at her then base, she was unfit, at that point, to move to her new location as (1) the proposed move had caused considerable stress and anxiety which was having a harmful effect on her pregnancy and (2) the amount of extra driving would cause a considerable discomfort as her pregnancy progressed.

As a result of the medical examiner's assessment, the Respondent advised the Complainant on 10 July 2014 that they would not progress transfer at that point nor would they progress her appeal at that time.

The Complainant commenced maternity leave on 24 November 2014 and returned to work in area EA1 on 1 October 2015.

By way of letter dated 22 September 2016 and a phone call of the same date, the Complainant was informed that she was being transferred from area EA1 to area EA2 , with effect from 10 October 2016.

The Respondent received a letter dated 3 October 2016 from the Complainant's GP outlining certain medical aspects pertaining to the Complainant, which the doctor felt should be taken into consideration in regard to her workplace location. As a result, the Respondent requested that the Complainant attend for independent medical assessment. The outcome of this assessment was that the complainant was fit for work and, as a result, she took up her position in her new area on 10 October 2016.

It was submitted by the Complainant's Trade Union representative that the relevant and applicable collective agreement is the Public Service Stability Agreement of 2013 ("Haddington Road"). In particular, it was submitted that a guideline redeployment distance of 45 km was still in operation and any transfer beyond that distance required that consultation would take place in relation to the assignment on offer.

The Labour Court decision (AD 13101), which confirmed that the applicable redeployment distance is the road distance, was also quoted in support of the Complainant's complaint. It was contended on the Complainant's behalf that the distance between her home and her new workplace in EA2 exceeds the 45km guideline distance. It was also submitted that the Complainant's daily commute time might typically exceed 1 hour, which represented twice the travel time associated with her previous location, EA1.

The Complainant's representative also stated that the Respondent did not conduct any selection procedure for the transfer nor did it seek volunteers. Section 6.1 .22 of the Public Service Agreement (PSA) of 2010 was quoted in support of this aspect of the Complainant's appeal. It was further contended that the Complainant never received any reason why she was selected for transfer and no criteria for selection have ever been cited. Consequently, it is submitted that the redeployment is, therefore, literally unreasonable.

Finally, it was submitted on the Complainant's behalf that the transfer takes no account of her family and personal circumstances in that she is the breastfeeding mother of a young child and that uncontested medical opinion suggests that she should "limit any prolonged driving".

In concluding, it was submitted on behalf of the Complainant that she is aware of the service needs of the Respondent and, therefore, does not seek a recommendation that the redeployment be immediately reversed. Instead, the Complainant seeks a recommendation that the Respondent undertake to offer her the next available deployment in her previous area (EA1) or in any other area within the Respondents area of responsibility, which might reduce the travel distance/time for the Complainant.

The Respondent stated that a full review of the Community Warden service took place in March 2014. Business needs identified the requirement for three community wardens in the area EA2. The Respondent submitted that management were generally satisfied if the Community Warden was within the boundary of their area of operation from 8:30 am as opposed to being actually at the base within the area which is a further distance away.

The Respondent rejects the Complainant's contention that her transfer constitutes a redeployment as per the Public Service Agreement (PSA). The Respondent contends that the context of the redeployment agreement in the PSA is in relation to those local authorities "absorbing surplus staff by means of redeployment within the organisation, within the sector and across the Public Service." (C.P.A 6.5.2). The Respondent contends that the Complainant's was not a redeployment scenario in the context as set out in the PSA but was rather a requirement to change location as a result of a business analysis of the Community Warden service.

The Respondent further contends that it would be normal practice within all local authorities for the Chief Executive to reorganise and restructure business areas as interim periods which can involve moving staff to different locations within the local authority. The Respondent further contends that this is reflected in all employment contracts for local authority staff. In support of this, the Respondent stated that the terms and conditions of the Complainant's contract of employment reflects this fact.

The Respondent submitted that, at all stages, when the Complainant raised issues regarding her medical health, the Respondent responded in a staff welfare role and initiated independent medical assessment to ascertain the effects of her illness on her capacity to carry out her role. It was submitted that when, in 2014, the medical assessment identified that it would not be in her best interest to be transferred to her new operational area, the Respondent took this advice on board and did not transfer the Complainant at that point in time. However, in 2016, in response to further concerns raised by the Complainant in relation to her health, the Respondent organised a further independent medical assessment which concluded that she was fit for work. The Respondent contended that it was only at this point the Complainant's transfer was implemented.

The Respondent contends that it has the right to continually assess its business needs and to restructure services in response to those requirements. The Respondent submits that it has no obligation to assign staff to locations based on the proximity of their homes. The Complainant's contract of employment is clear that she can be assigned anywhere within the Respondents area of operation. Consequently, the Respondent contends that it has not breached the Complainant's terms and conditions of employment with regard to her transfer.

While the Respondent recognises that the move may have been perceived as difficult by the Complainant, it submits that relocation is an imperative for the purpose of achieving the legitimate aims of the Respondent in relation to the delivery of the Community Warden service.

In conclusion, the Respondent submits that if the Complainant's appeal of her transfer is successful its staff and those in other local authorities, who were required to move location to carry out the duties attaching into their roles, will instigate similar claims. The Respondent submitted that mobility of staff within local authorities is fundamental to how the local authorities operate. Consequently, the Respondent requested that the adjudication find that the complainant's complaint is not well founded.

Having carefully considered the evidence presented and representations made by the parties, I am of the view that the Complainant’s transfer to a new location is more akin to that of a regular transfer as a result of business/operational needs and is not, as contended by the Complainant, a redeployment, as envisaged under the Public Service Agreement of 2013.

However, notwithstanding the above, it is clear from the evidence presented, that the transfer at the centre of this claim gave rise to certain personal challenges for the Complainant. This is particularly so given that her new location is less favourable, in terms of location/travelling time etc, than was the case in her previous location. Matters were further complicated for the Complainant in that the timing of her transfer coincided with the time when she was pregnant and, subsequently, looking after a new-born child.

It is noted that the Complainant's reaction to the situation have been balanced and practical in nature. Despite the perceived challenges associated with her transfer to the new location, the Complainant has taken up the role and continues to carry out her duties while allowing the complaint to be progressed through the appropriate procedures/channels. In particular, I note that the Complainant is not seeking the immediate reversal of the transfer. Rather, she is seeking to be offered the next available deployment in her previous area or in one that is more convenient than her current location. In the circumstances, I find that this is not an unreasonable request.

With regard to the Respondent's position on this matter, their right to deploy staff on the basis of operational, organisation and business needs must be seen as inalienable. Were this not the case, the Respondent, and indeed all local authorities, could conceivably potentially find themselves seriously constrained in terms of the delivery of service in a manner that will be both impractical and unacceptable.

However, I am satisfied that the Respondent's requirement to deploy staff in line with business needs and the Complainant's desire to achieve an as convenient as possible work location, need not necessarily be mutually exclusive positions. I believe that good, open communication and consultation around work-related matters, particularly those of a personal nature, lead to greater cooperation and commitment and to an enhanced of the working relationship between employer and employee. I believe such open communication and consultation has a role to play in the mutually successful resolution of this claim.

Having carefully considered all of the evidence adduced and based on the considerations as detailed above, I recommend that the Respondent commit to engaging in consultation with the Complainant in relation to any/all vacancies and/or deployment opportunities that arise within the Respondent's Community Warden Service in the Complainant's original electoral area or in any such area that has the potential to reduce her travelling distance/time.

In this regard, I would recommend that the consultation include advising the Complainant of the existence of the vacancy or potential opportunity and discussing the potential that such opportunities may provide in order to address the Complainant's preference for a more convenient location.

I would further recommend that, where there are no other influencing factors such as recognised practices and/or custom and practice with regard to transfer/redeployment, which might prevent the position being offered to the Complainant, and where the circumstances also meets the Complainant's preferences, she should be offered that position.

This concludes my recommendation.

Redeployment

Transferability