Complainant

Respondent

Anonymised Parties

A worker

A Local authority

Representatives

Joan H Devine & co Solicitors

Head of HR

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-00014955-001

12/10/2017

The complainant works with a local authority and was transferred against his will to another location.

The complainant commenced employment with the respondent in 2007. It is a condition of his contract of employment that he reside in the area in which his duties are to be performed or within a reasonable distance thereof. In May 2017 he was directed to work elsewhere in the local authority and this alternative location is not at a reasonable distance for him having regard to his personal circumstances and the absence of transportation to that location. The complainant believes that he was transferred as a consequence of seeking an additional payment for working as a digger driver. On the advice of his union at that time he refused to drive the digger for two months. His belief in this regard is supported by the fact that his position in the original depot was filled by transfer of another individual from a different depot. The complainant believes that his selection for transfer was not reasonable having regard to his personal circumstances and the disproportionate impact on him.

The complainant raised his grievance by letter of 24th May 2017 but no response was received until a subsequent letter was sent by his solicitor, which is not in accordance with the respondent’s grievance procedures which requires that grievances be dealt with ‘at the earliest opportunity’.

The respondent indicated that they were declining to deal with his grievance because he was on sick leave. This is not in compliance with the respondent’s grievance procedure. The complainant has since returned to work but has not been provided with transport to the new location as would have been the practice in the past.

It is the complainant’s position that;

·         The respondent failed to act reasonably in selecting him for transfer

·         The respondent failed to adhere to its own grievance procedures

·         The respondent failed to provide him with transport in a manner not consistent with its previous actions

·         The respondent has exposed the complainant to personal injury and expense

The complainant is seeking reinstatement to his position in the original depot with sick leave and other terms and conditions intact and compensation for the losses accrued as a consequence of the respondent.

The complainant’s contract of employment provides in clause 5 as follows;

The Council reserves the right to re-locate you to other premises/locations which it deems to be reasonable and with notice at any stage during your employment.

In accordance with this clause the complainant was relocated to another depot effective from 2 June 2017 at a distance of approx. 30km from his existing site. A colleague of his was also relocated at the same time. The complainant did not take up duty in the new area as he went out sick from the date he was notified of the transfer until 4 September 2017. The reason for the relocation in both instances was operational and it is essential from the respondent’s perspective that staff are flexible regarding work assignments and work locations. Employees can expect to be rotated from time to time to meet varying operation needs. And it is the respondent’s prerogative to relocate staff as required from time to time. In this particular instance a substantial additional budget had been assigned for work in the new area requiring additional deployment of staff.   The respondent refers to the Labour Court decision, LCR21541 in support of the right of the respondent to take decisions on staff assignment.

The labour court recommendation relied upon by the respondent is Roscommon County Council and SIPTU, (LCR 21541), recommended as follows;

The Court notes with concern that the re-location of the six General Service Supervisors took place without the benefit of effective engagement in advance. Effective engagement in this context means (a) the process of engaging with the Supervisors concerned to ensure that there is full understanding of the basis for the re-location and (b) engaging to understand and as far as reasonably possible have regard to the implications for individuals of the re-location. Nothing in such a process amounts to a restriction on the Council’s capacity to take decisions as regards staff assignment or allocation of resources.

The Court recommends that the parties should engage as a matter of urgency such that full understanding is shared as regards the basis for the Council’s decision to re-locate the Supervisors and to consider the effects of that decision on individuals. In the meantime, the Supervisors should continue to operate in accordance with the re-location as implemented in February 2017. Any unresolved issues remaining following effective engagement should be dealt with through normal industrial relations procedures as necessary.

It is clear from the above decision that the Council has the right to relocate staff in accordance with its priorities. However, it is also clear that the exercise of such a prerogative should be carried out in accordance with good management practice to minimise the impact on staff engagement with and commitment to the organisation, primarily through ensuring that the reasons for relocation are clear and also to consider the consequences for the individual. It is essential for good employee relations that the rationale underpinning any such decision be fully explained to an affected member of staff and that his/her perspective on the change be fully heard, if necessary through the grievance procedure.

In the current case it is clear that any such efforts by the respondent were minimal and did not provide any comfort to the complainant that the decision to relocate him was necessary. His belief that it was for other reasons made it all the more important that he be given an opportunity to be heard, if necessary within the Grievance Procedure.     In particular, the fact that another employee was transferred in to replace him in his original post while he was being transferred out, was in need of explanation.

The respondent, by letter dated 31 July 2017 referred to Clause 16.1 of the Grievance Procedure   which states; ‘During the course of the grievance procedure the employee shall continue to work while the grievance is being processed.’

The respondent relied on this clause for its decision not to process the grievance while the complainant was out sick. I don’t accept that this clause precludes dealing with a grievance while an employee is sick. There may well be, from time to time, a link between the behaviour or the decision of an employer which is the subject of the grievance, and the inability of the employee to work until the issue is resolved. In such circumstances a refusal to deal with an employee under a grievance procedure until he or she returned to work would be absurd. The more accepted interpretation of the clause is that an employee should not refuse to work while the grievance is being processed, as distinct from being unable to work.

The respondent claims that they believed the matter to have been resolved informally.   However, following contact from the complainant on 1 Sept which clarified that he did not believe the matter to have been resolved, nothing further was done by the respondent to process the matter until the complainant referred the issue to the WRC on 12th October. It is clear that the respondent did not comply with its own grievance procedures.

From the evidence presented it is also clear that the move had considerable impact on the complainant for which the respondent does not appear to have had due regard as recommended in the labour court decision on which respondent relies.

I recommend in full and final settlement of this dispute that;

a) The respondent pay the claimant €6,000 compensation for the distress arising from the failures in the processing of his grievance and

b) That the respondent review its position in relation to the application of the Grievance Procedure to staff on sick leave and

c) The respondent review its staff transfer/redeployment policy to provide timely engagement with affected staff, and that the implications for the staff concerned are fully considered.

Application of Grievance procedure while on sick leave. Transfer to another location