Complainant

Respondent

Anonymised Parties

A General Dental Surgeon

A Health Service Provider

Representatives

IMPACT Trade Union

HSE.

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-00012791-001

26/07/2017

The Claimant has sought realisation of a transfer request and the Employer Is not in a position to accommodate the request .

The Claimant is a Dentist who commenced work with the Health Service Provider on September 1, 2001.She currently works a 3-day week in Kilkenny and lives in Cork. The Claimant has brought her case to the WRC as she first made a request to transfer to Cork in 2009. She believes that this transfer request had not been addressed and she has been overtaken on two occasions by appointments from the National Panel. In addition, she learned of another transfer which had been accommodated as a special case.

The Claimant lodged a grievance regarding the management of her transfer on 26 January, 2016. She submitted supporting arguments to advance her transfer request. She had a 318-km round trip daily and this long commute was having a negative effect on her young family. She also referred to the impact this was having on her career and earning capacity. She sought a transfer in advance of appointments from Interview.

The Union advanced her case in November 2016 and while one vacancy was identified, a career break returnee availed of this. The Union sought to refer the case to Adjudication in September 2016 but the Employer objected. Both parties did attend WRC Conciliation in July 2017 without resolution.

The Claimant presented for Occupational Review in May 2017 and a report issued to her line Manager seeking a review of the claimant’s situation and support for her request to transfer to Cork.

The Union contended that the claimant had been first on the transfer panel for a significant number of years. The Union submitted that several transfers had occurred both prior to and in the aftermath of the claimant’s request.

The Union outlined the difficulties faced by the claimant in securing a transfer while a National Appointment Panel was in existence. The Union submitted that it was the practice of the Employer to place candidates from the national panel in preference to the transfer panel, as the claimant was not a member of the National Appointments panel, she contended that she was being disadvantaged by this inconsistency. The Union asked for a Recommendation that the Claimants transfer request would be realised.

The Employer submitted that they were not able to grant the transfer request in advance of the National Appointments panel.

The Employer accepted the chronological background of the case as outlined by the Union. The Employer can only grant a transfer request where there is a fully funded vacancy.

The Employer outlined that there are currently no agreed National Transfer Policy for Dental surgeons. In May 2011, in a bid to facilitate staff to move within the organisation, the Employer introduced an Employee Swap facility, where two employees of the same grade with the approval of both line managers could swop location.

The Transfer process in place in the area sought by the claimant stands as a series of administrative steps which offers vacancies to be filled to returnees from special leave /career break in the first instance. The National Appointments Panel forms the next port of call and finally, the vacancy is filled from a local log of transfer requests.

The Employer submitted that there is some overlap in the constituents of transfer panels and appointments panels and all candidates are currently employed in other areas.

Cork does not have a vacancy and in the event, that one is earmarked, it will be subject to the administrative steps for filling. The National appointments panel will expire in June 2018.

The Employer concluded that it was not able to offer the claimant a transfer in preference to the approved administrative steps for filling a position. There are currently no approved vacancies, yet some are anticipated in the medium to long term.

The Employer sought that the claim be dismissed.

I have considered both submissions in this case, both written and oral. I note that the claimant has worked with the Employer for almost 17 years and for almost 9 of those years she has been seeking to work closer to her home and family. I appreciate that life events can inject realism to an employment relationship and it is clear to me that the claimant has an immediate need to come to work in Cork.

I note that the Employer is a Unitary Employer comprised of several sub-groups. However, this is not currently supported by an enabling National Transfer Dental panel. Instead, a system of localised lists are maintained and activated when possible, but almost always in the aftermath of returnees from career break and appointments from a national panel.

While I do not doubt the good will of any of the sub groups, the maintenance of localised lists is highly subjective and over reliant on a “grace and favour “system. I fully accept that an Employer must always hold a high level of discretion to accommodate urgent transfer requests. However, it isn’t unusual that such measures would raise concern from those who are waiting for reciprocal moves. I believe this is what has happened here.

I am struck by several points in this case. The Claimants name has been on the local list since 2009 .I could not establish whether the Administrative Protocol on vacancies   was shared with her at that time .However , I am struck by the undisputed fact that the claimant was on a transfer list prior to the inauguration of the national appointments panel in 2015 .She was not informed that this panel would take precedence over the local list as evidenced by her attempts to activate her claim for transfer concurrent with the life time of the panel .

I was struck by the presence of the Occupational Health review which had been raised in a previous third party forum and I was surprised that the action point of the suggested review had not been completed.

I gave the parties a break to consider whether the Claimants personal circumstances permitted the parties to agree a fair ratio with the national appointments panel for realisation of the transfer request. This was unsuccessful. The Employer did point to a potential window of opportunity that the claimant would be offered the next vacancy on expiration of the national panel next Summer.

Neither party had information on the quantum of names on either panel or on the number seeking to relocate to Cork.

I understand that the Employer has no desire to disturb a national panel and the Union has no desire to disenfranchise other members who wish to transfer. However, this case is now on its second point of entry to the states Industrial relations machine and I must consider the case on its own merits.

Given that the claimant had previously worked with the Employer on the West Coast and had transferred to Kilkenny without breaking her service, a mobility clause exists in her contract. I note that she is also prepared to consider an increase in her hours and has flexibility on work location within the county on transfer. This demonstrates that the claimant is prepared to meet the Employer half way.

I appreciate that a National Transfer Panel co-existing with a National Appointments Panel is the optimal and objective goal for the Employer. However, this is not a veritable option for the claimant now and I am dealing with the legacy of the localised listing.

I have found that the claimant has waited an inordinate period to access a vacancy in a Unitary Employer environment. By being placed on the transfer list, it instilled an expectation of mobility. This delay has caused her to choose to work part time with a commensurate reduction in pension and earnings. This has disadvantaged her. The Claimant also has a very compelling Occupational Health Review which sought an action plan which has not materialised. The Claimant does not have a fall-back position on the National appointments panel.

I have found that both parties are equally keen to reach a resolution in this case. The Claimants Host Sub Group are prepared to transfer the claimant and receive a back fill from the National recruiter. The Claimant has been given an expectation of mobility since 2009.She now presents a compelling set of circumstances to underpin her desired transfer. I find that the continual denial of the transfer request to be both unfair and unreasonable.

I did give some thought of proposing a ratio system to interface with the National Panel but find that is best discussed between the parties in the event of the evolution of the National Transfer Panel.

In the meantime, I have found merit in the current Dispute.

Transfer Request.