Complainant

Respondent

Anonymised Parties

A Trade Union Official

A Trade Union

Representatives

Union   representation

Act

Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00010239-001

15/03/2017

The Complainant claims that he has   been subjected to grossly unfair treatment by the Respondent, that he has been   wrongly reassigned within the organisation and that he was prevented from   working in the area of his experience and expertise. He claims that he, in   effect, was disciplined and demoted. The Respondent claims that the Complainant   has not been treated unfairly. There is no dispute within the meaning of the   Industrial Relations Acts 1969. The Complainant was never disciplined or demoted.   It claims that the Complainant has now returned back to his original Division   after a temporary assignment in another department to provide cover.

The Complainant   commenced work with the Respondent in December 1997 where he is still employed.   He claims that he has built up considerable experience and expertise over a   number of years in the Construction Sector.

He said   that in October 2015 he was approached by management to provide temporary   cover work in a different department (“the centre”) for a period of time due   to a sick leave absence. He said that he agreed to help.

The Complainant   said he felt that as of January 2016 the need for him as temporary cover had   come to an end with the return to work of his work colleague. He said he sought   to revert back to his own job as was the original agreement. He claims that he   met with the Head of Division on 7 January 2016, who told him that he would   have to remain in the Centre for another six months when staffing   arrangements would be reviewed again. The Complainant said that he did not   accept that decision, he had agreed to a temporary arrangement to cover a   sick leave absence for a work colleague who had now returned to work. He said   he felt that as agreed he should return to his original post in the Construction   Sector. The following day he said that he received an email from the Head of   Organisational Development and Support Service saying that the Head of the Complainant’s   Division had requested a continuation of his temporary assignment due to   critical staffing needs. He claims that he again challenged that decision and   although he had no problem helping out in the Centre, he felt that having   consulted directly with the staff in this area it was evident that there was   no specific critical staff need and he felt that there was something sinister   behind the decision to move him to the Centre and keep him there. He put this   in his reply to the Head of Organisational Development and Support Service.

Following   an exchange of emails between the Complainant and the Head of Organisational   Development and Support Service the Respondent offered to review the matter   at the end of March 2016. The Complainant said that another staff member was   due back from Parental Leave at the end of February 2016 and therefore he   questioned managements need to review it again. He said that he felt there   was something more sinister behind this decision and he put that to   management.

The Complainant   claims that due to the temporary nature of his assignment and his anticipated   return to his own job in the very near future, he continued to work on some Construction   cases from his original Sector. He claims that he received an email from the   Head of Organisational Development and Support Service who said that he was   not required to keep actively operating in the Construction Sector and to   stop doing so unless he was specifically asked to contribute.

The Complainant   said the promised review never came about and he had to look for it in April   2016, when he was told that due to the fact that further leave had been   granted to another staff member on Parental Leave, his assignment to the   Centre was extended and that another review would be carried out in June   2016. The Complainant felt the goal-posts had moved again and he was furious   as he was not originally assigned to the Centre to cover this work colleague   on Parental Leave, he was asked to cover a sick leave absence and that work   colleague had returned to work. He felt that this was the last straw and he   sought a meeting with management. A meeting was held in April 2016 where he   claims the Head of Organisational Development and Support Service said that   there was a significant review under way in all divisions and departments and   he would have more information in June 2016.

Following   a meeting in June 2016, the Head of Organisational Development and Support   Service emailed the Complainant and said that the review would not be   completed until 22 July 2016. The Complainant, through his representative   again outlined his concern and outlined specific instances where there were   unexplained inconsistencies in managements reasoning to keep the Complainant   in the Centre. The Complainant cited the ratio of casework to Union officials   in the Centre as significantly lower to comparable situations in other   regions, and to the fact that a staff member from another region had to cover   the Construction cases in the Complainant’s region. The Complainant looked   for an open forum for staff and management to discuss all. He said as there   was no reply to this email, the Complainant referred his case to an internal industrial   relations adjudication body within the Union to adjudicate on the matter and   issue a recommendation.

The   adjudication body met with the parties, heard both sides and made the   following findings and recommendations.

1)   Management does have the right to move staff as required within the   Organisation, taking into account the need to deploy resources in the most   efficient and effective manner. This should be done in timely consultation   with the staff effected and in accordance with an agreed protocol or   understanding with staff.

2) The   absence of a protocol or understanding on the redeployment of staff within   the union contributed to the conflict that has arisen in this case.

3) A   distinction needs to be made between temporary assignment transfers within   the organisation and deployment which is of a more permanent nature.

4) There   was no sinister motive in seeking to reassign the Complainant. There is   clearly an issue in the background about the ongoing staffing requirement in   the division where the Complainant was originally assigned. This should have   been openly addressed along with other demands for resources to cover   absences. Greater priority should have been given to the Complainant’s   reasonable concerns about when he should return to his division.

It   recommended the following,

a) The   Complainant should return to his division from 1 February 2017.

b) Early   in 2017 there should be engagement between the sides to work out the   Complainant’s assignments.

c) A   protocol should be concluded as soon as possible between management and the   staff in the Centre covering temporary reassignment of staff and the   deployment of staff within the organisation.

The Complainant   said that he accepted the findings and recommendations.

On 30   January 2017, the Complainant met with the new Head of Division and he was   told that he was assigned to the Transport Sector within the Division. The Complainant   expressed his disappointment and felt that management were not keeping in line   with the adjudication body’s recommendation. He said that this complaint was   always about him returning to work in the Construction Sector and management   knew that. Following an exchange of communications, the Complainant undertook   to take up his duties in the Transport Sector “under protest” and told   management that he would be referring the complaint to the appropriate third   party.

The Complainant   claims that when the organisation’s yearly diary was circulated in January   2017, it showed that he was still assigned to the Centre and that the grade   indicated to him was at a level lower than he actually holds. He claims that it   appears that he was demoted and it was humiliating.

The Complainant   claims that there was a sinister ulterior motive at play behind how   management treated him and he was in effect disciplined. He claims that   management repeatedly breached the principles of the organisation’s own collective   agreement.

The Complainant   asked that this complaint be deemed well founded. That he be returned to his   position in the Construction Sector with his original assignments given back   to him from 1 January 2018. That there is timely and effective engagement   with all parties to ensure a smooth handover of same. That a protocol should   be concluded as soon as possible between Management and the Centre covering   temporary assignment of staff and the deployment of staff within the   organisation.

The Respondent   refutes the claim that the Complainant has a dispute as envisaged by Section   13 of the Industrial Relations Act 1969. It claims that the matters of the   complaint have already been referred through the Unions own internal industrial   relations mechanism where there were findings and recommendations. It said   that the Complainant fully accepted those findings and recommendations and management   fully implemented them.

The   material facts regarding dates of meetings and communications exchanges   between the parties were generally not in dispute.

The   Respondent agrees that the Complainant was assigned to another department   within the Union to work in the Centre in October 2015. This was extended due   to operational needs and in January 2016 the Complainant was advised that he   would be required to remain there for another 6 months. The Respondent claims   the Complainant at that point objected to the further extension on the basis   that he had not agreed to it and there was no critical staff need in the Centre   at the time. The Respondent also notes that the Complainant expressed his   feelings that there was something sinister behind his assignment to the   Centre. The Respondent claims that it reassured the Complainant that his   original work base would not change, that his temporary assignment would be   reviewed again in March 2016 and there was absolutely nothing sinister behind   its decision to move and keep him there.

The   Respondent claims that a review was carried out and the Complainant was   informed that due to operational needs – another staff member working in the   Centre was granted special leave - it was decided to extend the duration of   the Complainant’s assignment and to review the matter again before the end of   June 2016.

The   Respondent noted that following a number of meetings with the Complainant and   his Union representative, the Head of Organisational Development and Support   Service advised the Complainant that he would be assigned to the Centre for   the duration of his work colleague’s special leave absence.

The   Respondent claims that the matter was taken by the Complainant to the Union’s   internal adjudication body and the key findings were that,

• Management does have the right to   move staff as required within the Organisation, taking into account the need   to deploy resources in the most efficient and effective manner.
• There was no sinister motive in   seeking to reassign the Complainant.

The key recommendation   was that,

• The Complainant should return to   his Division from 1 February 2017.

The   Respondent claims that it never wrongly assigned or demoted the Complainant.   The Respondent submitted a copy of the Complainant’s contract of employment in   evidence and points to management’s entitlement to “utilise staff at its sole discretion in any area of Union activity,   irrespective of location”. It claims that this point was upheld in the   Adjudication’s findings. The Respondent said the Complainant was never disciplined   or demoted and that his pay and conditions always remained the same. The   error appearing in the Union diary was an unfortunate mistake, an administrative   error, which was in no way malicious or intended to offend.

As regards   the claim that there was an ulterior motive against the Complainant, the   Respondent said that this is simply not true, there is no issue with the   Complainant and there is no evidence to support such a claim. The Respondent   claims that this was further recognised in the Adjudication findings.

The   Respondent claims that it fully engaged with the Unions internal Adjudication   procedures to facilitate the Complainant in pursuing his grievance. It noted   that the Complainant accepted those findings and recommendations.

The   Respondent said it never prohibited the Complainant from returning to the   Construction Sector. The internal adjudication body’s recommendations only   made reference to the return of the Complainant to the Division, and his   initial assignment within the Division was to the Transport Sector where the   need was greatest at that time. The Respondent   refutes that the Complainant is not being given meaningful work and points to   specific examples of cases he is currently working on, including three areas of   which are in the Construction Sector. The Respondent also points to the fact   that work in the Construction Sector is on the increase and the Complainant   will continue to be involved. It claims that a draft letter of reassurance of   the Complainant work position was offered to assure the Complainant that he   will continue to be assigned to the Construction Sector for the foreseeable future   and that he will be assigned some cases that he would have worked on in the   past and some new cases.

The Respondent   has asked that, the Complainant’s case is not to be considered well founded   and that the Respondent has deemed to have fully implemented the recommendation   of the Union’s own internal industrial relations adjudication body.

Section 13 of the   Industrial Relations Acts, 1969 requires that I make a recommendation to the   parties setting forth my opinion on the merits of the dispute.

Having heard all the   evidence presented by both sides and in particular the useful submissions   prepared by the parties I am satisfied that the dispute between the parties   in relation to the Complainant’s working arrangement remains unresolved   satisfactorily from the Complainant’s perspective.

I accept that both parties   have engaged with each other in a respectful manner and want to get a   resolution to this dispute so that they can move on. It is also clear that   both parties fully engaged with the Union’s internal adjudication body and it   would appear that both parties were satisfied with its findings and   recommendations, at least on their respective interpretation of those   recommendations at first reading. However, and without any hint of criticisms   of those findings and recommendations, it would appear that both parties   actual interpretation of the adjudication body recommendations is what has   sparked the need for the Complainant to bring the matter to the Workplace   Relations Commission.

When considering the   matter I am reminded of the previous findings and recommendations of the Union’s   own adjudication body. Although this is a new investigation of the dispute   and is in no way to be considered as a review of the adjudication body’s work,   I am satisfied that its findings and recommendations were, at least for a   period of time, a suitable and mutually acceptable arrangement for both   sides. Accordingly, I am drawn to support those findings and recommendations.  

In   particular I note the recommendations of the internal adjudication body where   it suggested that,

a) The   Complainant should return to his Division from 1 February 2017.

b) Early   in 2017 there should be engagement between the sides to work out the   Complainant’s assignments.

c) A   protocol should be concluded as soon as possible between management and the   staff in the Centre covering temporary reassignment of staff and the   deployment of staff within the organisation.

I note where the Respondent   has identified what it determines as the key findings and recommendations and   it goes on to say that the recommendations were implemented by management. I   do not see the lists of findings and recommendations as a list in order of   priority. I would suggest the findings and recommendations are all of equal   standalone importance. I would suggest that all of them serve a particular   function in their own right. It is clear that point a) was implemented fully.   However, it would appear to me that points b) and c) above were not actually achieved,   for one reason or another, and this I feel has strained the good relations   between the parties unfortunately. I am satisfied that had the parties met   earlier in 2017 to work out the Complainant’s assignments, that the   difference in interpretation of the Complainant’s role and assignment may   have been dealt with differently and to the satisfaction of all sides.

At this point, I want to   also acknowledge the offer of a letter of reassurance of the Complainant’s work   position from the Respondent, this clearly sets out the Respondent’s vision   for the Complainant’s future role in the Union. I accept its bone fides and   believe it sets a solid foundation from where the relationship can be built   upon.

On balance, I find it reasonable   that management returned the Complainant to his Division as per the recommendation   and likewise I find it reasonable that he was asked to help out where the   needs were greatest at that time. I am also satisfied that the Complainant was   told he is and will continue to be involved in the Construction Sector.

Equally, I find it reasonable   that the Complainant felt that he was someway been scolded for challenging   management, finding himself back in the Division but still not in   Construction where he had expected to return and where the crux of this   dispute actually stems from.

In an attempt to draw the   parties together I would suggest a minor tweaking of the previous set of findings   and recommendations from the internal adjudication body which as noted above was   generally accepted by both parties heretofore.

Similar to the internal   adjudication body’s findings I too find that management does have the right   to move staff as required within the Organisation, taking into account the   need to deploy resources in the most efficient and effective manner. I also   believe that this should be done in timely consultation with the staff affected   and in accordance with an agreed protocol or understanding with staff. I   would add that there should be openness and transparency in the deployment of   resources to ensure equity and fairness for all.

I too find   that the absence of a protocol or understanding on the redeployment of staff   within the Union contributed to the conflict that has arisen in this case. I   would add that this needs to be addressed.

I too find   that a distinction needs to be made between temporary assignment transfers   within the organisation and deployment which is of a more permanent nature   and would add that time limits for temporary assignments are clearly set,   carefully monitored and reviewed prior to their expiry to offset possible   confusion.

I too find   that there was no sinister motive in seeking to reassign the Complainant.   There is clearly an issue in the background about the ongoing staffing   requirement in the Division where the Complainant was originally assigned.   This should have been openly addressed along with other demands for resources   to cover absences. Greater priority should have been given to the   Complainant’s reasonable concerns about when he should return to his   division. I would add that I also find that there was no sinister motive in   seeking to reassign the Complainant back to the Division and that he was   required to assist, at least in the first instance, with a body of work where   the need was greatest in the Division at that time.

I also   find that the Complainant was entitled to feel aggrieved that he did not   return as he expected to the Constructor Sector and he took up the duties that   were assigned to him albeit in a different Sector.

I find   that the Complainant has now served as cover for a variety of temporary posts   within the Union since October 2015 – for two years - and within that time   the uncertainty has caused him considerable upset notwithstanding his   uncontested evidence that he offered to help out for a short period of time   in a temporary assignment.

I find   that the offer of a letter of reassurance of the Complainants work position   from the Respondent sets a reasonable and solid foundation from where the   relationship can be built upon.

Having given careful   consideration to all the written and oral submissions and having noted the effects   that this dispute has had on the Complainant and his relationship with his   employer I make the following recommendations;

•   That the   Complainant be returned to his position in the Construction Sector with his   original assignments given back to him from 1 February 2018.
•   That the   Complainant is assigned to the Construction Sector as his main centre of work   activity. However, that this should not constrain management from requesting   him to assist within the Division on other projects as they arise similarly   to any other members of the Division when required to do so at times of   urgent need.
•   That there is   timely and effective engagement between all parties to ensure a smooth   handover of same. This should be completed at least 8 days before 1 February   2018.
•   That the Complainant   accepts the letter of reassurance from the Respondent and that both sides   work together on this as the template for the Complainant’s future role   within the organisation.
•   That a protocol   should be concluded as soon as possible between Management and ‘the Centre’   covering temporary assignment of staff and the deployment of staff within the   organisation. The work on this protocol should be started by no later than 30   November 2017.  

I make these   recommendations on the specifics of this case, and for this case only, and it   shall not set a precedent to allow others self-determine where they shall or   shall not work within this organisation.

Industrial Relations Acts - temporary assignment - deployment of staff