Complainant

Respondent

Anonymised Parties

A Cleaner

A Contract Cleaning Company

Representatives

SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00013803-001

07/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00013803-002

07/09/2017

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

CA-00013803-003

07/09/2017

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

CA-00013803-004

07/09/2017

The complainant was employed as a contract cleaner on a weekly wage of €367.50.

The complainant had not attended for work since May 29th, 2017 which at the date of the hearing, was a period of just over seven months. She claims payment of wages for this period.

She had transferred to the current respondent under the Transfer of Undertakings regulations in September 2016 and on her return to work following a period of sick leave absence there were changes proposed to her working arrangements.

She was willing to accept a change in her shift working arrangements but no other changes and in particular she was not willing to change location.

In March 2017 complaints were made against her and she made a bullying complaint in April.

Her bullying complaint was not upheld but the respondent proposed to transfer her to another location to which she was not agreeable. She objects to the fact that both complaints (that made against her and that made by her) were investigated together.

She is appealing the final written warning.

Her union became involved and proposed mediation. This was not accepted by the respondent.

She received an instruction to attend at the new work location on May 26th but she was not agreeable to this and has been off work since May 29th 2017.

She says that she has an implied contractual term to remain at her previous work location.

She sees the proposal to transfer her as an act of penalisation for making her complaint. She had worked tin that same locatiom for fifteen years and could not imagine working anywhere else.

The respondent says that re-location of the complainant had been under consideration before her complaint and did not represent retaliation for her making it.

It had had discussions with her about a move two months before she made her complaint.

There had been dissatisfaction with her work performance and as a result of disciplinary proceedings against her she had been given a second written warning on May 16th 2017.

She, too, was unhappy about her work location and made this clear on numerus occasions between November 2016 and February 2017.

The respondent says it has the right to re-assign employees to different locations and while the complainant had worked in the same place for fifteen years it had good reasons to transfer her.

The complaints both by and against the complainant were fully investigated and in due course the decision was taken to transfer her.

The company met the complainant and her union on May 22nd 2017 to seek a resolution of the matter and this was followed by correspondence in which the respondent stated that the complainant was in breach of her contract. The company stated its position at this meeting; that it had the right under the complainant’s contract to move her to other sites (and that this had been the position in the contract she had prior to the transfer.)

She was told by letter of May 29th that if she did not attend at the alternative location her contract would be terminated. The alternative location was on the same terms and conditions as her existing ones.

On July 18th, having continued to fail to attend for work she was given notice of a disciplinary hearing to consider her ‘failure to attend allocated work location’.

This resulted in a final written warning on July 26th.

She appealed unsuccessfully but in further correspondence to her union on August 31st she was advised that her position was still open but that she must return by October 2nd 2017.

She was told that her status was that of ‘unauthorised leave of absence’.

The starting point in this case appears to be the complaint against the complainant in March.

This related to an incident where she was alleged to have used abusive language to a supervisor.

It was investigated and despite the complainant’s denial that it had taken place was upheld.

This was followed by her own complaint that she was bullied, and also included complaints dating back to the previous September.

I find no fault with the bundling of both complaints into a single process for the purpose of the investigation; it made perfect sense to do so given the parties involved.

The decision to transfer her was made for two reasons according to the respondent; one was dissatisfaction on the part of the client with her performance, and the other was to remove the opportunity for conflict between the complainant and her supervisor which had been an issue for both of them.

Related to this is whether the respondent had the right to transfer her for this (or any reason) and therefore whether her claim for payment of wages is justified.

One can view this question in two ways; as a narrow, contract of employment issue, and/or as an industrial relations problem which required a practical resolution.

In respect of the first of these, I find the respondent did have the right to do effect a transfer. While it had not been exercised in fifteen years it had been in her previous contract with the transferor during that period.

The complainant therefore had the option to accept this under protest and process any resulting grievance in the normal way. The transfer was on the same terms of employment as she already enjoyed.

She did not do so and has been absent from her workplace ever since.

Different issues may arise where a transfer is in some way a disguised act of discipline, and where there has been a lack of fair procedure in determining the transfer but neither of these conditions in present in this case.

But given what has been found above about the right under contract to do so and the fact that she would have maintained her existing conditions the respondent’s precise motive for doing so is less important.

In any event, it was a practical solution in the circumstances. The ‘Outcome of Investigation’ letter of May 16th to the complainant states that she ‘confirmed in [the] meeting of 8th May that the relationship between yourself and {the supervisor] has completely broken down and you are unhappy in work. As a result of this [the respondent] will be transferring you to a new site…’

There are therefore sufficient independent circumstances to explain it and I find it does not constitute an act of penalisation and so CA-00013803-002 fails.

In relation to the claim under the Payment of Wages Act the complainant is saying, essentially, that she was available for work and the employer would not permit her to return.

If that were true, her claim would probably succeed.

But it is not true. Her position was that she would only return to work on her own terms and to her preferred location.

She was advised to report to work at the new site on May 16th but did not do so.

She and her union again made it very clear at a meeting on May 22nd that she would not be reporting to the new site, and again on May 26th.

There was also an email from the respondent on that same date which stated that ‘Failure to relocate to your new site will result in [the respondent] accepting your resignation as of 26/05/2017

The respondent made it clear in a letter on May 29th that her refusal to transfer was a breach of her contract, but stepped back somewhat from the email of a few days earlier, stating that it did not want to terminate her contract.

The complainant did not attend for work and was called to a disciplinary hearing on July 26th.

This resulted in a final written warning for her failure to transfer or to request permission for unpaid/unapproved leave.

She now seeks payment of wages for the period.

I find that she refused to carry out a legitimate instruction of her employer to attend at work in line with her contract of employment, admittedly with the additional objective of resolving a difficult inter-personal dispute.

In passing, it may be important to say that a trade union which supports such a position, perhaps in the hope of succeeding in a complaint like this before the WRC, is venturing on to very hazardous ground. Trade unions traditionally have advised a member to work such disputed decisions under protest and process them through the established grievance machinery.

If the report of the meeting of May 22nd 2017 correctly reports the union official who stated that the complainant ‘will not be going to the [alternative] site’ (emphasis added) then this is a worrying departure from the ‘under protest’ practise where it exposes an employee to disciplinary action for refusing to carry out a legitimate instruction.

Complaint CA—00013803-001 under the Payment of Wages Act fails therefore.

The final written warning followed internal processes to which the complainant’s union has raised an objection in that the same person; the General Manager, was involved in both the initial hearing and the appeal.

This is not acceptable practise. Therefore, I find that it is valid and complaint CA-00013803-003 succeeds in part, and I propose what I trust is an equitable solution below.

Complaint CA—00013803-004 was stated at the hearing to be about the failure to resolve the ‘breach of contract’ issue which is yet a further re-running of the substantive complaint.

As this final two complaints are made under the Industrial Relations Act I will recommend that the complainant return to work as soon as possible. Clearly, this will not be to her former site, and there may have to be discussions about the detail related to her assignment. But they will take place in the context that the respondent has the right to reassign her, provided her general terms of employment are not adversely affected.

If she does so, and in the interests of a fresh start for both parties, I recommend to the respondent that the duration of the final written warning be shortened and that it should expire on the date of her return.

For the reasons fully set out above my decision in respect of complaint CA—00013803-001 under the Payment of Wages Act is that it is not upheld.

Likewise, I find no basis for the complaint CA—00013803-002 of penalisation under the Safety, Health and Welfare at Work Act, and it too is dismissed.

In relation to complaints CA—00013803-003 and 004 under the Industrial Relations Act, the first of these partially succeeds and I recommend to the complainant that she return to work as soon as possible to a new location and if she does I recommend to the respondent that the final written warning should expire, and be expunged on the date of her return.