Worker

Employer

Anonymised Parties

Engineer

County Council

Representatives

Ms. Deirdre Canty, SIPTU

Local Government Management Agency

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969

CA-00040949-002

12/11/2020

Dispute seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969

CA-00044319-003

25/05/2021

Dispute seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969

CA-00044352-002

26/05/2021

The Worker commenced employment with the Employer on 1st April 2007. At all times his role was described as that of “Executive Engineer”. On the 12th November 2020, 25th May 2021 & 26th May 2021, the Worker referred a number of disputes with the meaning of the present Act to the Commission. By correspondence received on 11th November 2020, the Employer positively elected to engage in the initial dispute and subsequently did so for all further disputes.

The disputes referred all relate to a number of complaints by the Worker arising from his proposed re-location and the withdrawal of a working from home arrangement. By subsequent submission, the Worker alleged that the Employer had failed to abide by their own grievance procedures in relation to the maintenance of a “status quo” during a grievance procedure. The Worker further submitted that the Employer had failed to properly implement the terms of a mediation agreement. By response, the Employer denied that they had breached their own procedures and submitted that they treated the Worker fairly at all times. Some matters referred related to complaints taken under other legislation and were not considered as part of the industrial relations dispute. As the factual matrix is common to all three disputes and overlaps between the same, my recommendation will be made under the final dispute referred, CA-00044352-002. This recommendation will relate to all disputes referred.

A hearing in relation to this matter was convened and finalised on 3rd December 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the dispute were raised as any stage of the proceedings.

In March of 2020, the Worker requested, and was granted, leave to work from home. On 28th April 2020, the Worker was informed that he would be moved to a different section of the metropolitan area from the following week. The Worker protested against this move as it was based on the other side of the city to his home address and would necessitate an hour’s commute each morning and evening. A formal grievance in relation to the same was submitted on 17th May 2020. Whilst waiting for the grievance to be heard, the Employer insisted that the Worker move to the new location. The Worker’s representative objected same on the basis of the wording of the Employer’s grievance procedure. In particular, the Worker referred to Section 6.1 of the same. This section stated that the “status quo” would be maintained during a grievance procedure.

On 9th June 2020, the worker received correspondence to the effect that he would be removed from payroll as he did not attend for work in the new location. The Worker submitted that this development represented a disciplinary sanction. He further submitted that he was not permitted an opportunity to contest or appeal this sanction.

On 18th June 2020, the Worker’s grievance was heard, over one month following the referral of the same.  On that same date, the Worker referred a complaint under the Employer’s dignity at work policy. This complaint involved a recently appointed line manager Whilst these matters were progressing, the Worker was working from home, as he was medically certified to do so. Nonetheless, on 1st July 2020 the Employer informed that Worker that his remote access was suspended.

During an appeal of this initial grievance, the parties agreed to attend mediation in an effort to resolve the issues that had arisen. A meeting in relation to the same was arranged for 25th September 2020. As a result of this process, a mediation agreement was signed on 28th October 2020. However, following the execution of this agreement, the Worker was requested to report to the manager that was the subject of the earlier complaint. Following the agreement, the Worker place of work was changed a number of times. The Worker attended a return to work meeting on 26th November 2020 regarding his place of work and duties on return. In the course of this meeting, the Worker was informed that the role he was to carry out was different in nature to that which he had previously performed. In particular, the Worker noted that many of the duties associated with the role were clerical in nature. The  Worker stated that another employee had been assigned to the role, and that the Employer had manufactured a new role in an effort to isolate him. Following the same, the Worker commenced a period of sick leave.

By submission, the Employer submitted that the Employer had breached their own procedures by failing to allow the “status quo” to prevail whilst the grievance was ongoing. They further submitted that the removal of the Worker from payroll in June 2020 represented an industrial action and an illegal disciplinary sanction. The Worker further submitted that the mediation agreement was not properly implemented by the Employer, causing him further distress and economic loss.

In 2020, following a review of engineering assignments, the Worker was re-assigned to a different location within the Employer’s area. The Worker was one of a number of employees to be re-assigned in this manner.  The Worker’s contract of employment states that employees may be transferred anywhere within the administrative boundary of the local authority.

On 17th May 2020, the Worker raised a grievance regarding the transfer. The Employer stated that the Worker would still have to transfer, with note that this is done so under protest. The Worker refused to present himself for work in the new location. Correspondence was issued to the Worker stating that he was required to attend on 18th May 2020 & 2nd June 2020. On 3rd June, the Employer issued correspondence stating that if the Worker did not attend for work on 8th June 2020 he would be removed from payroll. The Worker did not attend and was subsequently removed from payroll on 9th June 2020.

On 18th June 2020, the Worker lodged a grievance regarding his line manager. Following a meeting in relation to these matters, the parties agreed to engage with mediation. Following a mediation conference, an agreement was signed on 28th October 2020. As a result of the same, the Worker was restored to payroll on 17th August 2021. As part of the mediation agreement, the Employer offered a number of alternative roles to the Worker. One such role, within the regeneration department of the Employer, was accepted by the Worker, with a proposed commencement date of 12th November 2020. As matters transpired, the Worker refused this offer on 11th November 2020. As a result of the same, the Worker was offered the role agreed in the mediation conference, with a proposed start date of 30th November. On 26th November, the Worker met with the mediator and a representative from the Employer, at the Worker’s request. In the course of this meeting, the Worker stated that he could not confirm that he would take up the role on the 30th. He stated that he believed that his duties had changed from those he had previously undertaken. By response, the Employer stated that the role involved that normal range of duties that would be expected of an executive engineer. On 27th November 2020, the Employer advised that the Worker that he was to attend work on 30th November 2020, and that any failure to report for duty would be considered an unauthorised absence. On 5th December, following a period of sick leave, the Worker was removed from the Employer’s payroll. The Complainant remained on certified sick leave for a lengthy period thereafter.

The present matter involves a lengthy process regarding, in the main, the Worker’s place of work. This dispute commenced when the Worker was informed on the 28th April 2020 that he would be transferred to a new place of work on the 5th May 2020. The first point I note is that such a move is permitted within the terms of the Worker’s contract of employment. However, while such a move might be permissible on a contractual basis, this does not give the Employer the unfettered right to re-locate the Worker without consequence. In the present case, the Worker was informed of his re-location with four working days’ notice. It is also apparent that the transfer was unilaterally imposed without any form of consultation or input of any description from the Worker.  This lack of engagement or notice regarding one of the core terms of the Worker’s employment appears to be the catalyst for many of the issues that arose thereafter.

The Worker takes issue with the Employer’s alleged failure to maintain the “status quo” during the subsequent grievance investigation. The Worker’s interpretation of this section of the grievance procedure is that the Employer is not permitted to complete the transfer whilst the grievance is ongoing. Notwithstanding the same, I find that I do not agree with the interpretation advanced by the Worker. The reference to a “status quo” must be read in conjunction with the rest of the clause, which states that “the status quo will be maintained and work will continue without interruption”. Having regard to the same, it is clear that the refence to a “status quo” references a continuation of normal working conditions whilst the grievance is being investigated. Such normal working conditions include the transfer, to be taken under protest and potentially reversed pending the outcome of the grievance.

The Worker further contends that his removal from payroll constituted industrial action and a disciplinary sanction. Having review the circumstances of the Worker being removed from payroll, it is clear that this occurred as the Worker had refused to work at the new location and was not providing services under his contract. I further note that the Worker was warned by way of correspondence that if he did not attend work that he would no longer receive his salary. In this regard, it is not unreasonable for the Employer to stop paying the Worker when he stopped working. Such an action is not in the form of a disciplinary sanction, it is a function of contract law.

The parties, to their credit, agreed to a mediation conference in an attempt to resolve the difficulties. On foot of the same, the parties signed a mediation agreement and both accepted that they were bound by the terms of the same. It appears that difficulties arose when the parties sought to have the Worker return to employment. In this regard, I note the Worker’s contention that the role he was to be returned to was fundamentally different to that which he had previously held. I further note that Employer’s position that the role was within the normal responsibilities of his employment. By submission, the Worker stated that the role contained far more clerical and administrative functions than his prior role and was in effect a new role. The Worker further submitted that this new role was created in an attempt to isolate and undermine him.  The first point I note is that the Worker’s role would always involve certain clerical and administrative functions, and an increase in the same cannot be said to be outside his job description. The second point to note is that the Worker refused to attend this role on the basis of a job description without actually having undertaken the role for any period of time. If the role had truly changed on a fundamental level, this is only something that can be evidenced once the Worker had undertaken the same for a period of time.

Having regard to the totality of the evidence presented, I find that the Employer acted unreasonably in seeking to transfer the Worker without any meaningful notice or consultation. This action gave rise to much of the subject matter of the subsequent dispute. Nevertheless, I find that the Employer acted reasonably by insisting that the Worker transfer while the grievance was ongoing and removing him from payroll when he refused to attend for work. I further find that the parties attempted to implement the terms of the mediation agreement in good faith.

Given that the Worker has now returned to work I find that compensation is the most appropriate form of remedy. Having regard to the totality of the evidence presented, I recommend that the work be paid the sum of €2,500 in settlement of this dispute.  

CA-00040949-002

This matter is covered by reference number CA-00044352-002.

CA-00044319-003

This matter is covered by reference number CA-00044352-002.

CA-00044352-002

I recommend that the work be paid the sum of €2,500 in settlement of this dispute. 

Unilateral Transfer, Grievance Procedures