Complainant

Respondent

Anonymised Parties

A Social Care Worker

An Intellectual Disability Service Provider

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-00029581-001

10/07/2019

The Complainant is employed as a Social Care Worker with the Respondent, a Service Provider in the Intellectual Disability sector. The Complainant had moved to her current work location (Location A) in August 2018, having previously worked for six years at one of the Respondent’s other centres (Location B). At Location A, the Complainant was contracted to work 120 hours in a four-week cycle.

In December 2018 the Complainant was the subject of a complaint from one of the residents in Location A. The Respondent commenced an investigation under the Trust in Care policy and, to allow this investigation to proceed, the Complainant was redeployed to another of the Respondent’s centres (Location C). The Respondent also commenced a parallel investigation under the Safeguarding Vulnerable Persons at Risk of Abuse: National Policy and Procedures (2014), to examine any issues of safeguarding concerns that may arise.

While containing the same number of overall hours (i.e. 120 hours over four weeks) the roster at Location C was configured slightly different to that at Location A. In Location C, there was one split shift in each of weeks two, three, four of the roster. Given that the Complainant was not required to work these split shifts at Location A, the Respondent agreed that she would not be required to work them at Location C, during her temporary deployment there. While this resulted in the Complainant working less than her 120 contracted hours, the Respondent agreed to top up her salary, including allowances, to equate with that which she was in receipt of in Location A.

The Trust in Care investigation, which concluded in March 2019, found that the Complainant had no case to answer.

During the Safeguarding Investigation, the Service User, who brought the original complaint against the Complainant, expressed a strong wish that he not be supported by the Complainant in his place of residence, i.e. Location A. Consequently, the Respondent’s Designated Officer, who is responsible for Safeguarding throughout the organisation, recommended that the Complainant would not to return to her original workplace at Location A. This recommendation was accepted by the Respondent on the basis that the relationship between the Service User and the Complainant had broken down.

In light of the outcome of the Safeguarding Investigation and the Respondent’s acceptance of same, it was necessary to identify a location, other than Location A, in which to deploy the Complainant. The Respondent explored some options in this regard which would meet with the Complainant’s desired outcome, which was to achieve a 120-hour contract, consistent with her childcare commitments, in a location in the local area. These explorations were initially carried out under the auspices of the Respondents Grievance Policy which was initiated by the Complainant on 18 April 2019.

As no satisfactory solution emerged from these explorations, the Respondent confirmed to the Complainant, by way of letter dated 29 April 2019, that they had no alternative but to confirm her in a are permanent position in Location C. The Respondent also confirmed, at this stage, that as the Trust in Care investigation had concluded there would no longer continue to top up the Complainant’s salary in relation to any shifts she did not work.

On receipt of this outcome, the Complainant proceeded to pursue her grievance under Stage 2 and Stage 3 of the Grievance Procedures. Meetings in this regard were held on 20 May 2019 and 21 June 2019. The Complainant’s grievance was not upheld at either Stage of the process, with the Respondent advising that: (a) they were not in a position to offer customised rosters for all employees, (b) they were not in a position to alter the roster configuration and (c) the Complainant’s request to lengthen shifts by 15 minutes each was not acceptable from a budgeting or staffing perspective.

The Complainant submitted her complaint under the Industrial Relations Act, to the WRC on 10 July 2019. That complaint is the subject of this adjudication.

In addition to providing a detailed background to the complaint, the following submissions were also made on behalf of the Complainant at the Oral Hearing:

·         The Respondent has no statutory obligation to provide services or accommodation to the service user. Therefore, it was submitted, on behalf of the Complainant, that, in providing the aggrieved service user with a veto in relation to the Complainant’s return to work at Location A, the Respondent had taken a business decision to prioritise the wishes of their “tenant” over those of their employee. It was further submitted in this regard that there is no reason to think that an accusation is required for the exercise of this veto, which might presumably be exercised for any reason.

·         While the Respondent is entitled to make business decisions and to redeploy staff on the basis of those decisions, it was submitted that it follows from paragraph 6.2 of the Trust and Care policy, that the Respondent’s duty to the Complainant, in situations where complaints are not upheld, is extensive and amounts to a guarantee that your career will not be adversely affected by reason of the complaint.

·         The Complainant has behaved reasonably in this matter, whereas the Respondent refuses to accept that there is any obligation to her above those of any member of staff seeking redeployment.

·         It is impossible for any accommodation of the Complainant’s situation, which has been occasioned by a business decision of the Respondent, not to have some “budgetary or staffing” impact. It is submitted, on behalf of the Complainant, that the Respondent is, in effect, seeking to place the negative consequences of its own business decision on the shoulders of the Complainant, that their decision requires trade-offs and compromises from the Respondent as well as from the Complainant. Consequently, it is submitted, on behalf of the Complainant, that this approach is far from acting to “ensure” that the Complainant’s career is not adversely affected by the unfounded complaint against her, under paragraph 6.2 of the Trust in Care policy.

Based on the above, it was submitted, on behalf of the Complainant, that she is seeking a recommendation that she be granted an appropriate contract location consistent with her childcare commitments.

In addition to providing a detailed account of the various investigation processes, supported by documentary evidence, submission was also made on behalf of the Respondent in support of their position/actions in this regard and in response to various elements of the Complainant’s claims and allegations.

In the Respondent’s submissions, they highlighted that, arising from the recommendations of the parallel Safeguarding Investigation process, the Complainant could not be permitted to return to work at Location A, both for her own protection and for the protection of the Service User. It was further submitted that in adopting this position, the Respondent was acting in line with two of its core values of Person Centredness and Rights-based Approach.

According to the Respondent’s submission, they worked diligently, throughout the initial early/mid April 2019 engagement process and subsequently throughout the grievance process, to find a solution which satisfies the Complainant and the requirement of the Respondent’s business. The Respondent further submits that they always maintained access to the level of contracted hours (120 hours over a four-week cycle) for the Complainant and, by doing so, have supplied the Complainant with an appropriate contract.

The Respondent submitted that allowing the Complainant to work less than her contracted hours would require the sourcing of alternative cover for the unfilled shifts, which in turn would incur the cost that the Respondent is not in a position to carry nor is it in a position to continue to top up the Complainant’s salary as they had done during the investigation period between December 2018 and April 2019 June with the attendant strain on financial resources.

According to the Respondent’s submission, they are not in a position to adjust rosters to meet the requirements of its employees in areas of service delivery throughout the organisation, where the needs of the service user is of paramount importance in all considerations.

The Respondent pointed out that, with the exception of Location A, split shifts are a feature of staff rosters in 4 out of 5 of the other residential centres in that particular catchment area. It was further submitted by the Respondent that the requirements of the service users in each residential centre dictates how work is organised and rosters are configured.

According to the Respondent, it was not possible to re-deploy the Complainant in the only other centre, in the catchment area, were split shift rosters do not feature, i.e. Location B, as this would have triggered a consequential move for another Social Care Worker to Location A and would have encountered other complications as a result of workplace complaint-related restrictions connected with that employee.

The Respondent submitted that they had sought alternative solutions to the situation, including: (a) the option of working in a night duty house as opposed to a “sleep over” house, (b) working in a residential centre some 35 km from her current catchment area, (c) working in Day Services in her local catchment area or (d) working in other locations, outside of her catchment area. According to the Respondent, all of these options were rejected by the Complainant.

In conclusion, the Respondent stated that they believe they have acted in good faith at all times and in the best interests of both service users and employees. While sympathetic to the Complainant’s childcare requirements, it was not possible to arrive at a successful outcome. However, the Respondent has continued to provide the Complainant with the 120-hour contract throughout the period in question.

According to the Respondent, redeployments and transfers, for many reasons, within its services, are a regular feature of employment for their employees. The Respondent stated that the Complainant’s original contract of employment provided for this eventuality under the “Changes” paragraph. The Respondent further submitted that they did not intentionally set out to redeploy the Complainant to a new workplace to disenfranchise the Complainant in any way. Consequently, when it became necessary to confirm the redeployment on a permanent basis, the Respondent expected the Complainant to fulfil her contractual obligations.

Based on the above submissions, the Respondent requested that their position on the matter be upheld, as submitted.

When considering this case, cognisance had to be taken of the particular industry in which the Respondent operates and the sensitivity of the issues which led to the Complainant submitting her complaint. In addition, given the funding model utilised by the Respondent, the ongoing cost implications of any potential outcomes needed to form part of the consideration process.

Having carefully considered all of the evidence adduced, I am satisfied that the Respondent dealt with the original complaint against the Complainant from the Service User in an appropriate manner, operating in line with the twin policies of Trust in Care and Safeguarding Vulnerable Persons at Risk of Abuse. While noting the Complainant’s contention that the Respondent has no statutory obligation to provide service/accommodation to the Service User and the question raised in relation to the acceptability of Service User being allowed to exercise a “veto” in relation to the Complainant’s place of employment, in circumstances where the original accusation was not upheld, I am satisfied that, given the circumstances and sensitivities of the matter, the Respondent had little option but to remove the Complainant from her work location at Location A and redeploy her to one of their other facilities. It is the Complainant’s dissatisfaction with the deployment offered that led to her initial raising of the grievance under the internal Grievance Procedures and the escalation of the matter to the WRC, when that internal process did not succeed in resolving the matter.

The Respondent proposes to redeploy the Complainant, on a permanent basis, to their facility at Location C, where she had been working on a pro-tem basis while the Trust in Care investigation was being conducted. From a detailed review of the evidence, it is clear that the Complainant’s dissatisfaction with this placement stems, primarily, from the presence of a split-shift, on one day per week, in weeks two, three and four of the four-week roster in operation at Location C. The Complainant contends that these split-shifts interfere with her childcare commitments, by reducing the amount of time she has with her children.

It appears, from the evidence adduced, that the requirement for split-shift exists in all of the Respondent’s facilities, with the exception of Location A (where it is no longer possible for the Complainant to work) and Location B (where she worked prior to her appointment to Location A in 2018). The Respondent presented detailed evidence in relation to the factors underpinning the creation of rosters, which are influenced, primarily, by the needs of the Service Users and their various movements in and out of the accommodation facilities, during any given day/week.

Based on this evidence, I am satisfied the Respondent’s position that the split-shifts are an integral part of the roster at Location C, is well-founded. Similarly, I find the Respondent’s contention that it is not possible to make adjustments to the roster, in order to facilitate the Complainant’s specific requirements, is also well-founded.

Given the respective positions of the parties in relation to Location C, it is clear from the evidence that attempts to resolve the issue then focused on alternative locations. The Respondent submitted that, as no vacancies existed in their other facilities and there were no live requests for transfer to Location C, the deployment of the Complainant to an alternative location, within the catchment area she was requesting, was not feasible without moving existing staff from those locations.

I note the submission made on behalf of the Complainant that, as the situation she found herself in was not due to any fault of hers, the Respondent should prioritise her deployment over the needs of other staff. However, it must be accepted that the likelihood of such a move giving rise to a grievance on the part of any staff member re-deployed unilaterally to facilitate the Complainant, would be very strong. In fact, experience would suggest that the further removed from the original situation and/or the individual(s) involved, the sense of grievance felt by those impacted later in the process can be even deeper than for the person originally involved. Clearly, the objective of any intervention to resolve an industrial relations dispute should, at minimum, endeavour to contain the issue rather than have it spread to others not currently or originally involved.

Against the background of the Complainant’s difficulties with a placement in Location C, I note from the evidence adduced that, during the grievance process, the Respondent considered alternative solutions and a number of options were offered to Complainant. However, the Complainant did not find any of these acceptable in the circumstances.

Having carefully considered all of the evidence presented by and on behalf of the Complainant and Respondent, I conclude that, in a situation where, in line with their Safeguarding Policy, the Respondent had no option but to seek an alternative location for the Complainant, genuine attempts have been made to facilitate the Complainant with a suitable position. While accepting that a permanent position at Location C is not ideal from the Complainant’s perspective, I find that it is not an unreasonable offer in all the circumstances, given the constraints the Respondent must work within. Finally, in this regard I do not accept the Complainant’s contention that the position on offer at Location C would in any way adversely impact on her future career with the Respondent.

Consequently, against that background and taking the submissions and positions of all parties involved into account, I set out below my recommendations with a view to resolving the dispute between the parties.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I make the following recommendations:

1.       As a redeployment to Location B (i.e. the location where the Complainant worked prior to her transfer to Location A in 2018) potentially offers the best solution, in the circumstances, I respectfully recommend that the Respondent conducts a confined campaign, whereby they invite expressions of interest from staff at Location B who might be willing to move voluntarily to Location C. In the event that such interest exists, an exchange between that individual and the Complainant should be organised as soon as possible.

2.       In the event that the recommendation at 1 above does not facilitate a move to Location B for the Complainant, then I respectfully recommend that the Respondent undertakes to give her first refusal on any vacancy that arises at Location B or at any other location which the Complainant would find more acceptable than her current position in Location C. This priority would remain in place until the Complainant can be accommodated with a placement that addresses her situation.

3.       In the meantime, I respectfully recommend that, in line with her original contract of employment, the Complainant accept her permanent deployment to Location C on the terms and conditions as set out in the letter dated 9 May 2019.

That completes my recommendations arising from my investigation of the Complainant’s claim under the Industrial Relations Acts.

Industrial Relations Act