ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00034684
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Local Authority |
Representatives | Jemma Mackey Siptu | Keith Irvine LGMA |
Complaint/Dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Industrial Relations Act 1969 | CA-00045734-001 | 19/08/2021 |
Date of Adjudication Hearing: 19/04/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
Background:
The Complainant objects to his transfer to another area by the Respondent. |
Summary of Complainant’s Case:
The Complainant is employed as a General Operative / Ganger with service since 2018 in Area ‘B’. In March 2020 he was asked to move on a temporary basis to Area ‘T’. He was moved back to Area B in November 2020. He was then advised by Management in March 2021 that he was to move to Area T and the move was permanent. He pursued a grievance and his grievance and appeal was not upheld. The Complainant argues that he was redeployed to a base which was further away from home and as he had domestic responsibilities, this was not taken account of in the move. Also an employee who was being trained ended up in Area B where the Complainant was discommoded. |
Summary of Respondent’s Case:
The Respondent asserts that the claimant was transferred in accordance with his terms and conditions of employment and that there is no case to answer where they reserve the right to transfer employees where required. The Claimant was first appointed to Area B, then transferred temporarily to Area T, returning to Area B in August 2020. This was followed by a permanent transfer to Area T on 1st April 2021. A Formal Grievance was then submitted on behalf of the claimant by his SIPTU official and following a Grievance Meeting a decision was issued confirming that the transfer would stand. The decision was appealed in June 2021, with the appeal decision again confirming that the transfer would stand. The Respondent asserts that this matter is in relation to the Claimant being transferred from one work location to another work location 4km apart; and where the claimant had previously worked in that area. This move was discussed with the claimant on 12th March 2021 with the claimant ultimately taking up the post in the new work location on 1st April 2021; with further engagement and correspondence occurring between those dates. The Council see that the two main issues contained within the complaint related to consultation/ engagement and notification in relation to the transfer and the second issue being in relation to the Council’s ability to transfer the claimant from one work location to another. |
In relation to the Council’s ability to transfer the claimant from one work location to
another we would refer to the claimant’s employment contract (Appendix 2) where in
the first paragraph it is stated:
Place of Work
“The Council reserves the right to assign you to any premises in use by the Council. You are to
reside in the area in which your duties are to be performed or within a reasonable distance
thereof.”
In relation to custom and practice for transferring staff; it has been and continues to
be the case that staff resources are allocated where needed and to satisfy business
requirements. The assignment of staff within a Local Authority is a matter for the
Chief Executive where the Council retains the ability to reorganise/ restructure
business areas and move staff to different work locations within the local authority.
The Chief Executive holds this ability by virtue of the Local Government Act 2001
where powers in relation to the management and allocation of staff were issued on a
statutory basis including s.159 (1) “The manager shall for the purposes of discharging
the responsibilities…make such staffing and organisational arrangements as may be
necessary for the purposes of carrying out the functions of the local authorities for
which he or she is responsible.”
The ability of the Council to reassign and transfer staff was also referenced in Croke
Park Public Service Agreement in the Redeployment Section where it was noted “It is
not intended that the redeployment scheme should supersede or in any way restrict or
hinder normal reassignment/ transfer of staff within an individual local authority. The
assignment of staff remains a matter for the Manager and staff will cooperate fully
with mobility procedures and/ or existing practices.” While this Case is not relevant in
relation to the subject of redeployment under the Croke Park Agreement it certainly
reinforces the Council’s position and ability to transfer its staff within the Local
Authority.
In relation to the reasons for the transfer of the claimant the Council explained
through its correspondence with the claimant’s representative as follows:
“The movement of (the claimant) within the district is to address a “safety need” rather
than a “business need”…engagement commenced once he was temporarily assigned to
the area last summer to address the safety need… The distance from his residence to the
T depot is approximately 4km extra than to the B depot therefore this
was not considered to be an issue…Subsequently the concerns regarding safety within the
gang were discussed with other engineers and GSS’s in the district as to who had shown the
best skill set and training to fulfil the role – (the claimant) was considered to best suit the
role. It should be noted that all men in the gang are fully trained in H&S but he is more
aware regarding safety and this is also borne out in his role as Safety Rep.”
“For clarity, the reasoning behind the transfer relates to the following: Provision of a
competent, trained operative who will provide H&S backup to the GSS both during day to day
activities and when the GSS is on Annual Leave. (The claimant) was previously assigned to this
GSS gang in 2020 for approximately 5 months and proved himself to be a valuable asset in
providing assistance to the GSS…”
In all circumstances the Respondent retain the ability to transfer the claimant to other work
locations where required. In relation to the current case the claimant was engaged
with prior to the permanent transfer and its impact considered where the additional
distance of the new work location is circa 4km.
The matter was the subject of a Grievance and Appeal, where the matter was
considered unfounded. The Council would ask the Adjudicator to dismiss the current
case accordingly.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
The right of the Respondent to redeploy staff is underpinned by the contract of employment and reinforced by the Public Service Agreements. The distance of 4kms between the two locations should not ordinarily prove difficult for the employee. However, in this case he stated that the area he was transferred to was larger than his previous location and as he has childcare responsibilities, this proves difficult. In this case the Worker’s obvious skills and training in Health & Safety has made him a valuable experienced employee and in the Respondent’s words he proved to be a competent, trained operative who provides H&S back up to the GSS. Therefore in a way he is a victim of his own success. He feels he was ‘penalised’ by co-operating with the move in the first place. I recommend that the Respondent keep the Complainant in mind for the next opportunity to move back to Area B and that as a measure of incentive and appreciation for his co-operation he should be offered a compensatory sum of €1,000. This solution is a once off recommendation and not to be used a precedent.
Dated: 10th June 2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Redeployment. |