Complainant

Respondent

Anonymised Parties

Health and Safety Manager

Health Service provider.

Representatives

FORSA

 Employer representatives.

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-00040281-001

06/10/2020

The worker has been employed as Health and Safety Manager with the employer since 2004.

His dispute concerns the failure of the employer to return him to the role of Health and Safety Manager-a role he held up until 2017.

He asks the adjudicator to recommend his transfer back into his original role.

His annual salary is €80,745.

He submitted his dispute to the WRC on 6/10/202.

The worker is employed as a Grade V111 officer in a senior specialist post with a public body.

The worker is seeking re-instatement to the position of Health and Safety Manager (Training Team) which he occupied from 2004- 2017.

Following on an IR process, he moved out of this position on in February 2017 on the recommendation of the Occupational Health Department and with the agreement of the respondent into a Mapping and Service Development position.

In 2019, the employer asked him to take on additional duties encompassing financial control duties which are not within his range of expertise. Given that scenario, he requested a move back to his former role. Both he and his trade union engaged with the employer about a managed and supervised transition back into his role of Health and Safety Manager (Training Team). That was the common goal of the worker his representative and the employer. The position had remained unfilled since 2017. In addition, his union has been in discussion with the employer about keeping the latter position open until the worker could be considered for the vacancy. The worker’s trade union representative states that while the letters to the worker of the 6 December 2019 and 9 January 2020 may not indicate an iron- clad agreement they indicate, at the very least, the common goal of facilitating his return to his former position.

The worker was informed that his prospective line manager in Health and Safety did not want to work with him.  

 The employer, despite being engaged in a process to see how his reinstatement in to his old role could be facilitated, ignored their agreement and went ahead and filled the role in August 2021.

The worker requests the adjudicator to accede to his request.

The employer states that the worker has no claim on the job of Head of the Training Team, one of four subsection of The Health and Safety Function. He left that position in 2017 through a voluntary process which he initiated. He was assigned to the Mapping and Service Development Project in February 2017. The reporting relationship with his previous line manager ended and he reported directly to the Clinical Lead in Occupational Health who also occupies the role of Assistant Director of HR.

The employer states that it is not possible to move the worker back into his old position as the job was filled in August 2021.  It had been vacant for years. They accept that they were engaged in a process with the worker. The employer does not have authority to have 2 people at the same grade in this role. While the employer engaged with the worker’s trade union in exploring the possibility of returning the worker to his former position there was no agreement to do so, nor was there any agreement to hold the position open until an outcome was reached.

He has no entitlement, now, to object to the filling of the post. The worker indicated no interest in returning to his previous job until extra duties were asked of him. The employer accepted that training would be required. The offer -as the worker describes it- of a return to the Head of the Training Team was conditional upon a framework going forward. This framework included approval for 1- and 3-year work plans, an understanding that the complainant would report to the previous line manager and details of that engagement.

With the arrival of Covid -19, work on progressing this transfer stalled. Ultimately the employer chose not to progress the transfer to the Head of Training role stating that the worker ‘s behaviour demonstrated an inability to maintain a workable relationship with his prospective line manager. The employer is happy for the complainant to continue in his current role.

The employer stated that they had discussed a number of roles within the worker’s skill set with his trade union and are  willing to continue that conversation.  The employer does not accept that the trade union should attend these meetings.

The employer and worker were engaged in a process established to explore and facilitate his return to the role of Health and Safety Manager (Training Team). The target date for the resumption of that role within the context of work plans and reporting relationships being agreed was early February 2020. A promised meeting for late January 2020 to progress this matter did not happen. February came and went. Thereafter the matter fell into abeyance until 13 March 2020 when the employer cast doubt on the feasibility of his transfer given his disinclination to engage with his prospective line manager in a telephone call. The process stalled and resurrected itself in September 2020, but meetings intended for September did not take place because of illness and leave . Thereafter, the worker submitted his dispute to the WRC in October 2020,

I accept that the arrival of Covid -19 changed the course of history for everything that was in progress at the time and no more so than in the area of the health services. The employer cast doubt on his return in March 2020 but left that doubt hanging until that doubt crystallised into a decision, communicated to the worker on the 2 September 2020, that the Pandemic meant that for now no move would be possible. The employer wrote to the worker on 24 February stating that she was withdrawing the offer of a return to the role.

The worker’s behaviour in refusing to engage in a telephone call with his prospective line manager, three years after the cessation of his reporting relationship and shortly before its intended resumption, hardly augured well for a functional, professional relationship with this line manager. This call was made in March 2020 when the worker had taken on functions in relation to PPE equipment, and according to the employer, the prospective line manager telephoned him offering his support as the worker was doing the job alone. I do not think that a manager requires union monitoring and supervision over each transaction with his line manager.

 I consider the stop, start, nature of the engagement, characterised by ambiguity and inconsistency to be far from satisfactory and below best practice. The waving of a red flag to the worker in March 2020 was left at that.

I do not have the authority to intervene and recommend that a second post be created.

I recommend that the worker engage with the employer to see how his talents and experience can be used to both his own and the employer’s benefit. I completely accept the employer’s stance that such engagement with a person of such a senior level should be conducted in- house but given the fractious nature of engagements and the loss of trust, I recommend that the worker should be allowed retain his union representative at the initial meeting. I recommend that the worker and the employer identify a training course which would widen his options for movement within the employment.

I recommend that the employer pay the worker the sum of €1000 in acknowledgement of the inconsistencies and deficiencies in the process adopted by them.

I recommend that the worker engage with the employer to see how his talents and experience can be used to both his own and the employer’s benefit. I recommend that the worker should be allowed retain his union representative at the initial meeting. I recommend that the worker and the employer identify a training course which would widen his options for movement within the employment.

I recommend that the employer pay the worker the sum of €1000 in acknowledgement of the inconsistencies and deficiencies in the process adopted by them.

IR; inconsistent process.