ADJUDICATION OFFICER RECOMMENDATIONS

Adjudication Reference: ADJ-00011141

Parties:

Dispute:

Date of Adjudication Hearing: 25th April 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

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:

SIPTU were in dispute with the Employer about the Complainant’s transfer to a new location, his consequent inability to perform his role as a firefighter and related to a loss in overtime payments and related matters..

Summary of Trade Union Case:

SIPTU said the Complainant is a permanent full-time employee with a named Local Authority working as a general operative in a named area in the County since his employment began in May 2011, until the Council redeployed him to another named area on 8th June 2017.   SIPTU said the Complainant is also employed by the same County Fire Service as a retained firefighter, working from the Fire Station in a 3rd named area in the County.

SIPTU said their dispute with the Employer on behalf of the Complainant is twofold:

1. SIPTU said the first complaint relates to the Employer moving the Complainant from one named area in the County to another named area in the County.   SIPTU said that this so-called redeployment takes the Complainant out of the allowed working distance from the Fire Station, usually 2 miles, thus prohibiting him from attending some call outs for the Fire Service when they arise.   SIPTU said that this places the Complainant in the onerous position of not meeting the expected percentage call-of 75% (not agreed with SIPTU) and as result he faces the possibility of losing part or all of his retainer and suffering financial loss for failing to be available for call-outs and further this could also lead to the termination of the Complainant’s employment with the Fire Service.SIPTU said that this is causing the Complainant much distress and is in contradiction of assurances given to them on behalf of the Complainant and his colleagues working for the Council in the roles of both council workers and retained firefighters during an LRC Conciliation Conference on 15th January 2015 and at a subsequent Labour Court Hearing.SIPTU said the Complainant is seeking to be redeployed back to the area he was transferred from in order that he can safely meet the criteria referring to distance from the Fire Station and he is seeking compensation for the distress caused by this situation and compensation for having to drive his own vehicle the extra 20km daily.   SIPTU said that on top of this the Complainant has lost out on attending at least 8 fire call-outs resulting in a loss of €700.00c to him. 
2. SIPTU said the second issue relates to the loss of overtime as a result of the Employer decommissioning the JCB Digger, which the Complainant drove and having this work carried out in its totality by a contract worker. SIPTU said that from 2011 to 2015 the Complainant drove the Employer’s JCB and engaged in the Winter Maintenance Programme loading the lorries with salt and gritting for the County’s roads.

They said the Complainant also received emergency call-outs throughout the year outside of the Winter Maintenance Programme.   SIPTU said that on average, these call-outs and Winter Maintenance Programme was worth €5,000.00c per annum to the Complainant.   SIPTU said the Employer has never compensated the Complainant for this loss of regular overtime and the Complainant is now seeking payment of this.

SIPTU said the Complainant has been employed by the Employer as a General Operative since 2001, working until June 2017 in a named location in the County prior to his redeployment to another named area.   He is paid at the top of the General Operative pay scale, he earns approximately €602.91 per 39 hour week.   They said the Complainant also works as a Firefighter for the Employer in the Retained Fire Service and he is contracted to a named Fire Station.

SIPTU said that on 8th June 2017, the Complainant was moved to a named area in the County, with no proper consultation, either with him or his Trade Union in accordance with the Haddington Road Public Service Agreement.   SIPTU said that the Complainant was informed the day before that he was to move to the new area and that he had no choice in the matter.   They said in a follow-up telephone call from the named HR Executive of the Council to the Complainant confirmed that as he was now in the new area he would have to resign from his firefighter position.       SIPTU said prior   to his redeployment the Complainant travelled a 10 minute drive to his base and he was available to meet all emergency call-outs.   The move took him 20 kilometres and his travel time is 23 minutes.

SIPTU said that in 2014 and 2015 the 3 named trade unions entered into negotiations with the Employer in relation to planned restructuring of the Local Authority geographical area.   They said that issues such as outsourcing of housing repairs, workforce planning, filling vacancies, loss of earnings, flexibility etc were of concerns to the trade unions members and were discussed.   SIPTU said that as can be seen from the minutes of a meeting held on 2nd December 2014 to discuss these changes.   They said the trade unions raised the issue of members being moved to different areas and they requested a guarantee that member would be facilitated near the fire station to enable them to respond to emergency callouts.   SIPTU said that the named Head of HR (who was present at the Hearing) at page 2 of the record of that meeting clearly states: “Current arrangements for staff who are employed on a full-time basis with the Council and also employed as Retained Fire Fighters will continue.”

SIPTU said a Conciliation Conference under the auspices of the Labour Relations Commission (LRC) took place on 15th January 2015 to deal with the many outstanding issues in relation to the restructuring.   On 21st January 2015, the Employer responded in writing to issues raised by SIPTU during the Conciliation Conference.   At Page 3, under the ‘Position regarding Outdoor Staff who are also members of the Fire Brigade the Head of HR stated “Outdoor Staff who are also member of the Fire Brigade will be facilitated as heretofore in relation to Fire Brigade call-outs.”   SIPTU said this reassurance was given again during a subsequent Labour Court Hearing held on Thursday 9th April 2015.   SIPTU said despite these assurances given by the Respondent, the Complainant has experienced ongoing difficulties in attending the fire brigade call-outs as his new location takes him some 20 kilometres from the Fire Station he is assigned to, making him unavailable to attend emergency call-outs.   SIPTU said that to date this redeployment has cost the Complainant approximately €700.00c, him having failed to respond to at least 8 emergency call-outs.  

They said that on top of this should the Complainant fail to attend for or complete a 75% call-out ration then he will be dismissed from his role as firefighter by the Employer.

SIPTU said that the Employer continues to deny the Complainant redeployment back to his original area despite assurances given to SIPTU during a WRC Conciliation Conference in July 2017, that his move to the new area was temporary and that as soon as the 2017 roads programme was over that he would transfer back to his original area.   They said other assurances given to the trade unions in relation to this issue, i.e. the LRC Conciliation Conference on 15th January 2015 and the subsequent Labour Court Hearing on 9th April 2015, have been ignored.

SIPTU said that on top of this the Complainant has not been compensated by the Employer for the use of his own private car after being redeployed to the new area.   They said that during a Conciliation Conference under the auspices of the Labour Relations Commission in 2003, the Employer confirmed that:   “….there is no requirement for workers to use their own cars on official business.”   They said that despite this the Complainant is having to use his own car to travel the extra 100 kilometres per week travelling to the new location and he has not been compensated.   SIPTU said the total extra mileage amounts to approximately 3,200 kilometres for the 8 months since the Complainant was redeployed.   SIPTU said other employees within the employment have availed of a Council to travel to and from work in similar circumstances.

SIPTU said that no proper and meaningful consultation took place in relation to the Complainant (and others) redeployment.   They said that the Haddington Road Agreement and the Public Service Agreement provide that once a need or potential need to redeploy staff is identified there should be appropriate and meaningful consultation with staff and their representatives before arrangements are put in place to seek volunteers and/or apply LIFO selection.   SIPTU said that best practice would be to outline the following as soon as it is reasonably practicable (e.g. not later than 30 days) before any transfer is due to take place:

1. The numbers of proposed redeployments and in particular the number identified in each grade
2. The reasons for the Redeployment Plan.   Examples of this might be the streamlining and reorganisation of work process to render them more efficient, the diminution of workload in a particular area of the organisation or the reasons why the workload in that area has decreased or any other reason relevant to the organisation.
3. The methods that will be employed to identify which employees will be subject to redeployment and to produce the requisite numbers to redeploy.
4. Any legal, economic, social or other implications arising. (Extract from PSA 2010- 2014)

SIPTU said the Complainant was told the day before his redeployment to the new area that he had to move and that he had no choice in the matter and that no proper or meaningful consultation took place with him or his trade union, SIPTU.

SIPTU said that this redeployment has had a financial impact on the Complainant, not just from the extra travelling but also due to the fact that to date the Complainant has not been able to attend a least 8 emergency firefighter call-outs resulting in a approximate loss of €700 since he was redeployed.

SIPTU said that on top of this the Complainant faces the probability of a dismissal from the Fire Service should his attendance fall below an acceptable level.   They said that to date the Employer remains adamant that a 75% minimum turnout is required.   SIPTU said that to date the Employer has been pursuing this matter in an aggressive and insidious manner, first by redeploying employees dispute assurances to the contrary, and then proactively seeking to dismiss them their firefighter duties when they fail to make the appropriate percentage of call-outs.   They said that a telephone call from the Head of HR to the Complainant shortly after he was redeployed is testimony to this fact when he was informed that he would have to resign his position as firefighter or face eventual dismissal from that role.

SIPTU said that from 2011 to 2015 the Complainant drove a JCB Digger for the Employer and he was engage in the Winter Maintenance Programme loading lorries with salt and gritting for the County’s roads over the Winter period.   They said the Complainant also received emergency call-outs when the JCB was needed outside of the Winter Maintenance Programme.  

SIPTU said that at that time the Employer also engaged a private contractor to provide a JCB and both machines worked simultaneously carrying out work for the Employer.   In 2015, the Employer took the decision to retire their own JCB Digger Machine and to continue to engage the private contractor. SIPTU said that this decision resulted in the Complainant having no further access to overtime either during the Winter Maintenance Programme or throughout the rest of the year.   SIPTU said that despite their best efforts the Employer has refused to compensate the Complainant for this loss or regular overtime and the associated payment for same.

SIPTU said that based on the foregoing they and the Complainant were submitting that the claims / complainants were well founded and that they be upheld.

SIPTU were seeking that the Complainant be reassigned to his previous location in the County and in addition were seeking that the Complainant be paid compensation for the following:

1. Travel to and from the reassigned area over the previous 8 months, resulting in an extra 3,200 kilometres driving at his own expense.   They said that Civil Service Rates, approved by the Revenue Commissioners set out that from 0-1,500km for an engine capacity 1501cc, the rate is 44.79 cent and this is an expense that will continue for as long as the Complainant remains in the reassigned area.
2. Loss of non-attendance of 8 firefighter call-outs totalling €700.00c 
3. Loss of regular overtime due to the Employer retiring the JCB with a loss of approximately €5,000.00c per annum  
4. The Complainant is also seeking compensation for the distress that these matters have caused him, i.e. the Employer’s refusal to compensate him for his travel, their failure to compensate him for his loss of regular overtime and for not been able to attend fire call-outs on a regular basis.

Favourable decisions were sought.

In his direct evidence the Complainant referred to his telephone discussion with the Head of HR on the day after his forced redeployment and he said that he was certain and adamant that she had told him explicitly that as he was now in his new redeployed area of work and that as it was farther away from his Fire Station base he would now have to resign his post as a Firefighter. He said that he was amazed and disappointed that this appeared to be now denied, but he was certain without any doubt that it had been said to him by her.   The Complainant confirmed that he was given less than one day’s notice of his redeployment, that he was told that he had no choice or say in the matter and that he had to move the following day.   He said that this presented serious problems to him, with (b) transport to the new location as his partner had to use the family car to get to work, (c) problems with childminding arrangements (d) longer working day with the additional travelling time involved or (e) take advice.   The Complainant said that he was given no opportunity to deal with or alleviate any of these problems before he had to move and said that he was shocked that no time whatsoever was given to him before the move much less consultation with him.   It appeared to him that any problems he had were not even considered and that he was delivered with an ultimatum.

Summary of Employer’s Case:

The Employer said that the cases today related to complaints/claims made by the Complainant who is employed as a General Operative/Retained Firefighter by them.

The Employer said that the Complainant is employed by them in a dual capacity as a full-time General Operative and a part-time Firefighter.   They said he commenced employment as a General Operative on a full-time basis on 4th May 2001 and he was initially assigned to a named Operational Area in the County.   He was appointed as a Part-Time Retained Firefighter on 1st October 2001, based in a named fire brigade area.   The Employer said that Clause 5 of the Complainant’s Contract of Employment relating to his General Operative position states: “The Council reserves the right to relocate you to other premises/locations which it deems to be reasonable and with notice at any stage during your employment.”   They said his Contract of Employment relating to the Complainant’s post as a Firefighter states: “Applicants must ordinarily reside and work within a 2 mile radius of the Fire Station for which the application is made.   If at any time this condition is not fulfilled by a member of the fire brigade service, their employment may be terminated.”

The Employer said that when the Complainant was appointed as a Part-Time Firefighter he was assigned to a named Fire Brigade and at that time he was carrying out duties in the same town in his full-time role as General Operative. He was subsequently moved in his full-time post in that area to a new base in another named area in the County, which brought him outside the required 2 mile radius as a Firefighter.

The Employer said that in accordance with the terms and conditions of his contract of employment, the Complainant was relocated in his post of General Operative to a named area in the County, a distance of approximately 17 kilometres.   They said this transfer took place on 2nd June 2017.   The Employer said that general operative colleague of the Complainant was relocated at the same time as the Complainant.   They said the reason for the relocation of both employees in their full-time roles was operational as it is essential, from the Council’s perspective, that employees are flexible with regard to work assignments and work locations in order to ensure the efficient management of their business.

The Employer said that in accordance with his terms and conditions of employment as a General Operative the Complainant can expect to be rotated and relocated from time to time to meet the varying operational needs of the County Council in an ever changing environment.   They said there are many circumstances and occurrences that give rise to a need for employee mobility, including organisational changes, operational review, service delivery and specific job requirements.   They said that all of these factors influenced the decision to transfer the Complainant and his colleague in June 2017.   The Employer said it is their prerogative, in the context of operations and service delivery, to relocate employees as required from time to time and this provision is encompassed in each and every employee’s contract of employment and they said the Complainant has entered into this agreed contractual provision.

The Employer said that in relation to the stated ‘WRC Agreement’ referred to by the Complainant in his WRC Complaint Form, where it is alleged that: “The Council agreed to facilitate Council employees, such as myself, who are also firefighters, to attend Fire Brigade call-outs as was heretofore following a Conciliation Conference on this matter and other issues 15th January 2015.   The Council are in breach of this agreement….”   The Employer said they wish to advise/state that no such WRC Agreement exists.   They said that further throughout this entire matter they have conducted their involvement in a manner that is consistent with all their legal, contractual and IR obligations.

The Employer said that the Complainant is claiming a loss of earnings as a consequence of his transfer.   He states in his Complainant Form that he was engaged in duties on the Winter Maintenance Programme, loading lorries and was also engaged in emergency call-outs for JCB driving duties at his original work location. The Employer said that the overtime worked by the Complainant on JCB duties was not regular or rostered.   They said that overtime is not guaranteed and fluctuates from time to time as the need arises and that therefore there is no basis, be it moral, legal contractual or otherwise for this loss of earnings claim in the instant case.

In relation to the claim for travelling to his (redeployed) place of work the Employer said that there were no grounds for such a payment or such a claim.   The Employer said no employer is obliged nor could be obliged to pay an employee expenses incurred in travelling to and from work nor would it be reasonable for an employer to be so required.   The Employer also said that the distance to and the time taken to travel to and from work was not excessive and very many workers had a greater distance and time involved than in this case with no expectation of payment for same.   The Employer said this element of the claims was without merit and should be rejected.

The Employer said the transfer of employees is at the discretion of management.   The Employer reserves the right to reassign and relocate employees as required from time to time with notice at any stage during their employment in accordance with the terms and conditions of their employment.   There is always a requirement to reassign and relocate employees from time to time to affect organisational change and service delivery and implement new working arrangements.   The Employer said there is nothing in their decision to relocate the Complainant in this case could result in the worsening to his terms and conditions of employment.

The Employer said that in a Labour Court Recommendation of 10th August 2017 [LCR 21541] regarding the relocation by them of General Service Supervisors in 2017, states that the General Service Supervisors in question should operate in accordance with their relocation as implemented and that nothing should restrict the Council’s capacity to take decisions as regards staffing assignments or allocation of resources.

Based on the foregoing the Employer submitted that the claims/complaints were not well founded and that they should be rejected.

The Head of HR gave direct evidence to the Hearing.   She said that she did indeed have a telephone discussion with the Complainant that day after his redeployment.   However she denied that she ever told him during that discussion that he would have to resign his position of Firefighter.   She said that she would never make such a statement to him or any employee.

Findings, Conclusions and Recommendations:

Section 13 of the Industrial Relations Act 1969 requires that I make a decision setting forth my opinion on the merits of the dispute.  

I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the claims on behalf of the Complainant.

No. 1 Redeployment of Complainant:                                                                                              .                                                                                                                                                  While I fully accept and support the right of the Employer to the direct their workforce and the fact that this includes the right to transfer employees as required for genuine operational needs, it must be done in a reasonable fashion and all factors must be take into account and it is clear that was not so in the instant.

The Complainant was employed by the Respondent, not just as a General Operative but also as a Retained Firefighter.   Both of these factors should have been taken into account when considering any potential redeployment of him by the Employer, but it is clear to me that his position as a Firefighter was either not taken into account or alternatively was given no weight whatsoever.   According to the evidence of the Employer it was not considered at all, despite that it must have been known by the Employer that the redeployment would make it impossible for the Complainant to continue to fulfil his role as Firefighter as his redeployment would place him outside the radius or area to enable him to provide cover for his firefighter duties.

This is an unreasonable position to be adopted by the Employer, it displays a callous indifference to the effect it would have on the Complainant by making it impossible for him to continue in his role as a firefighter, a role he had performed to the satisfaction of the Employer for a period of 15 years, and to suffer the consequent loss in income.   It also difficult to understand why the Employer would take no account of his value to them of his considerable experience in the firefighting role and the considerable investment in training provided by them to him in that respect.

It is to be expected that a Local Authority will do all possible to facilitate or enable a firefighter to continue in and perform their role as a firefighter, but in this instance that clearly was not the case.

It is clear to me that the Employer made no effort whatsoever to avoid redeploying the Complainant to a location where he could not continue to perform his firefighter role.   I was certainly presented with no evidence that any such effort was made by the Employer.

Not only did the Employer redeploy him in the full knowledge that the redeployment would make it impossible for him to continue to perform his firefighter role but it has made no effort whatsoever to allow him return to his original base or one within the radius that would allow him to continue in his role as a firefighter.   Again I was certainly presented with no evidence that any such effort was made by the Employer.

In discussion at the Hearing there was no suggestion whatsoever that the Complainant would be moving back to the area he was deployed from or to any other area from which he could resume his firefighter role, indeed the reverse was the case.

In addition I must also consider the manner in which the redeployment was handled by the Employer, which is extremely surprising.   What occurred in that respect is not in dispute.   On 7th June 2017, the Complainant was informed by the Employer that he was to move to the new area and that he had no choice in the matter.   On the following day, the same position was confirmed to the Complainant by the Respondent’s Head of HR in a telephone discussion with the Complainant.  

Quite apart from the agreements referenced to by SIPTU, which they claim the Employer was in breach of in the handling of this matter, this was not a fair or reasonable way to deal with this matter that took any account of the Complainant’s position.  

Firstly, I note that the Complainant was given less than one day’s notice of the redeployment.   This afforded him no opportunity to make necessary arrangements necessitated by the change, such as arranging transport to the new location, the longer period away from home with any consequent changes in his personal or domestic arrangements, such as childminding etc.   There was no consultation (meaningful or otherwise} with the Complainant or SIPTU before the redeployment was effectively enforced on him.   This is not in accordance with good practice or normal industrial relation practice.

Based on the foregoing I see considerable merit in the claims in relation to the complaints in relation to the redeployment of the Complainant and the way that matter was handled by the Employer and they are upheld in full by me. I am accepting the figure submitted by SIPTU of at least 8 callouts in the sum of €700.00c were lost to the Complainant due to his redeployment.

No. 2. Loss of Overime:                                                                                             .                                         I note that in relation to the claim for compensation for loss of overtime earnings the Labour Court have consistently and regularly decided in numerous determinations/recommendations that where overtime is regular and rostered and has been in place for 3 or more consecutive years then compensation for loss of this overtime is warranted and at the rate of 1.5 or 2 times the annual loss suffered.

In the instant case I note that the overtime involved in the instant case was performed by the Complainant driving the JCB from 2011 to 2015, a period of 4 years before it ceased.   In that period this work was performed by him and he was rostered to perform it in that 4 year period.  

Accordingly I am satisfied and I find that the Complainant performed this overtime work for a period of 4 years on a regular and rostered basis and that accordingly he is entitled to be compensated for loss of these overtime earnings.

Based on the foregoing I see considerable merit in the complaint in relation to loss of overtime earnings and it is upheld in full be me.

No. 3. Payment for Travelling to Work:                                                                                                   .           I note that in relation to this element of the claims that what the Complainant is claiming that he should be paid travelling expenses for travelling to and from his reassigned place of work.

I note that it is not normal practice to pay employees either expenses or time spent in relation to travelling to work and the distance that Complainant has been travelling to and from work of 20 kilometres is not particularly long or onerous and many employees, including with the Employer, do this without a second thought or any expectation of travelling expenses being paid by them.

Based on the foregoing I do not see merit in the element of the claims that relate to payment of travelling expenses and I is rejected by me.

Based on the foregoing I now recommend as follows in relation to the element of the claims that I have upheld.

As a full and final settlement of the claims before me I recommend that (a) the Employer return to the Complainant to the location from which he was redeployed on 8th June 2017 or to some other location that will place him in a location that is within the radius that will allow him to resume and fully perform his role as a Firefighter and that this be completed within 4 weeks of the date of this recommendation and in meaningful consultation with the Complainant and his trade union, SIPTU.   I further require the Employer to pay the Complainant €700.00c for loss of call-out payments.

In relation to the claim in respect of overtime I recommend that the Employer pay the Complainant compensation for the loss of the overtime in question.   This compensation should be at 1.5 times his annual loss, that the loss should be calculated based on his last two full years performing that overtime, i.e. from 1st April 2015 to 31st March 2016 and from 1st April 2016 to 31st March 2017, and I recommend this be paid to the Complainant within 6 weeks of the date of this recommendation.  

I further recommend that the Employer pay the Complainant the sum of €5,000.00c for the way it handled this matter.   For the avoidance of doubt I wish to confirm that this sum is not wages or arrears of wages, but rather is compensation for the way the respondent handled this matter and its treatment of the Complainant in these matters.

I so recommend.

Dated:   10th July 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly