Complainant

Respondent

Anonymised Parties

A Porter

A Health Provider

Representatives

Shonagh Byrne SIPTU

A HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-0041922-001

11/01/2021

The Employee was moved twice from his location of work due to Investigations which he was not given the details of and wished to be relocated back to his original location of work (or nearby) and was seeking to be compensated for the moves.

 It was the Employee’s contention that he was unfairly removed from his work location on two separate occasions without fair procedures being followed and in breach of natural justice and the Employee is seeking to be relocated to a suitable agreed work location in his general home area. 

The Employee was seeking to be provided with the complaints which resulted in his removal from two work locations.

The Employee was also seeking a recommendation of compensation for the breach of his rights to fair procedures and natural justice. 

The Employee has been employed as a Porter since 1982.  Prior to June 2019, the Employee’s work location was near his home.

On 18th June 2019 at approx. 1.30 pm, during a Disciplinary Investigation process involving a complaint against the Employee, he was approached by his Line Managers and handed a letter which stated that he was being immediately removed from his work location, as a result of an allegation that he may have spoken to an Investigation witness. The Employee stated to his Manager that he had no idea who the witnesses were and wanted to contact his Union, but he was denied this request by management who said he could contact his union after he left the building, he was then escorted to his car and the whole incident took place in front of colleagues. The Employee was not provided with a written copy of any allegation.

Initially the Employee was advised that he would be relocated to a particular location but as this was the local centre of the complainant, the Employee sought an alternative location. The Employee was not facilitated with a location in his home area and was asked to move to a location further away. The Employee was terribly upset and stressed during this period and was out of work for a period of time on certified medical leave. The Employee was certified fit to return to work in Mid-July and was relocated to a City despite there being vacancies in his home area at the time.

Following representation on behalf of the Employee, SIPTU we were told that it was not possible to send the Employee to his home location because of possible conflicts with an ongoing investigation. SIPTU then asked what the possible conflicts were and were then informed that it was just a management decision not to locate him there and nothing to do with the investigation. 

The Employee was then assigned to a number of locations over a considerable period of time which sometimes involved over 2 hours travel.

The Disciplinary process concluded in August 2020; the Employee continued to work in another location from November 2019 until mid-October 2020.

In October 2020 the Employee was advised by his Line Manager that he was being removed from his location and was to be relocated to another location after 9th November when he was due to return from annual leave.

The Employee lodged a grievance regarding the proposed move on 23rd October and was advised that management had referred the grievance to the decision makers. SIPTU also write to the Head of HR to ask that the Employee to be allowed to remain in his current location until the grievance was investigated and were informed “Mr (X) was advised as part of his recent Disciplinary Process at Stage IV level that his ongoing role and function would be reviewed. As part of this review, it is proposed to move Mr (X) from his current assignment.  Any reassignment will be carried out in line with the agreed methodology and process and will comply with the 45KM boundary as set out in the various agreements on same.”

Following a number of representations and interactions, SIPTU responded to advise that the Employee would move under protest and wanted the matter progressed under the grievance procedure and were informed that the grievance would be addressed, and the Employee sent his grievance to a Manager on 18th November 2020. The Manager responded by email on 20th November to advise that she would be in contact to organise a grievance meeting. The Manager then wrote to the Employee again on 23rd November to advise that “From reviewing your letter, I do not think that this falls within the scope of the grievance procedure as per the Grievance Procedure.  Can you specify what your grievance is and how it falls within the scope of the grievance procedure?” SIPTU responded on 23rd November to again request a meeting under Grievance procedure and were “the appropriate pathway to follow is through the decision maker regarding Mr (X) removal from A to B campus” and so the matter was referred back to HR. SIPTU clarified the specific grievances that the Employee was seeking to have investigated on 3rd December by email. the Employee was seeking copies of the two complaints which resulted in him being removed from two separate work locations.HR responded on 10th December to advise the matter had been referred back to local management.

As the grievance had not been resolved and the process has gone on for a considerable amount of time, the Employee requested that SIPTU would refer the grievance to the WRC. The case was referred to the WRC on 11th January 2021.

On 13th September 2021the Employee submitted a request under the Freedom of Information Act to the Employer seeking copies of the two statements which resulted in his removal from (A) in June 2019 and  (B) in November 2020. On 18th October 2021 the Employee was advised by the Employer FOI department that the requested ‘records does not exist or cannot be found” SIPTU wrote to Employer Employee Relations on 20th October 2021 attaching a copy of the correspondence from the FOI department and on 17th November 2021 HR confirmed the following in response to the Employee’s grievance.

“The overtime issue would be resolved

There were no suitable vacancies in the (Employees Home area) to be reviewed in six months

Re the statements requested 

-      In relation to documentation requested in respect of complaints made, now comprehended by an FOI request, local management have sought legal advice on the matter to ensure there would be no data breach if shared – will revert as soon as response is received. There was no further clarification provided by Management in relation to the documentation requested. “

The Employee is a long service member of the Employers staff with over 37 years’ service and was the subject of a disciplinary procedure from November 2018 until its final conclusion in August 2020 and was issued with a disciplinary sanction which has since expired. There was no reference to relocation as part of the disciplinary outcome. The Employee was removed from his work location in June 2019 in response to an alleged complaint from a witness. This alleged complaint was never provided to the Employee. The Employee was out sick due the stress and upset caused by this for a period of over 12 weeks.

The Employee returned to work in November 2019 and worked for the next twelve months in his seconded location and got on well with colleagues and service users. In October 2020 the Employee was again informed by his Line Manager that he was being removed from work in the second centre and was to be relocated to a centre further away.  The reasons provided by the Employer for the move were that it was part of the disciplinary outcome. This was 14 weeks after the disciplinary outcome meeting.

To date the Employee has not been provided with copies of the two alleged complaints or clarification on whether they actually exist. 

SI146 the Code of Practice on Grievance & Disciplinary Procedures states: 

“That employee grievances are fairly examined and processed

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

 That details of any allegations or complaints are put to the employee concerned;

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

That the employee concerned is given the opportunity to avail of the right to be

represented during the procedure; 

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

 These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses. “

The Employee contends that his relocation is a second disciplinary sanction imposed on him which is in breach of fair procedures.

The Employee was then told he was moved due to a complaint which has never been disclosed to him despite confirmation that it would be.

The Employee’s grievance was not properly or fairly investigated by the Respondent

The Employee was then told the documentation he requested under FOI did not exist or could not be found.

The Employee has the right to be provided with any complaints about him and the right to reply to those complaints. The respondent moved the Employee on foot of these alleged complaints but yet the Employee has never been provided with them, and in fact it is not clear if they actually exist.

The Employee has been treated unfairly and in breach of his rights to fair procedures and natural justice. 

Redress sought

The Employee who lives in the X area is seeking to be relocated to an agreed suitable vacancy in the X area as soon as possible within an agreed time frame.

The Employee is also seeking a recommendation of financial compensation for the manner in which the Respondent has treated him, and in recognition of the failure of the Respondent to apply fair processes concerning the provision of statements, the delay in the entire process and the upset and stress cased to the Employee and his family.

The Employee was reassigned to an alternative location as a protective measure during an investigative process.  This was in line with normal Employer practice and all appropriate documentation was forwarded to the Employee.

The Employee was reassigned by way of a further protective measure as the investigative process evolved.  

Full compensation for loss of earnings has been processed.  An initial payment of €6,918.58 has been made with a second payment due in May 2022.  

The Employer assigns work locations based on service requirement.  The current assignment complies with the provisions of the Haddington Road Agreement as being within 45km from the employee’s home. 

The service has advised there are no Portering vacancies in the Employees area.  Changes to the model of delivery of services has resulted in reduced Portering need overall.

The Employer relocated the Employee on two occasions. Perhaps it had justifiable reasons for this, but none were offered to the Hearing and more importantly indeed none were given to the Employee. In the absence of any reasons being presented the Adjudicator has to take the circumstances as presented in that there were no reasonable grounds for the change of location. I note the Employer will make good any losses incurred by the moves by May 2022 however this does not really fully exonerate the Employer of their responsibilities in this dispute. No evidence was offered as to why an Employee with nearly 40 years’ service was moved without any explanation nor was he given any of the complaints in writing. This lack of information is seemingly, a matter that cannot be rectified at this point.  Confidentiality was not put forward as a ground for the reasons for the moves and the original complaints were not given to the Hearing.  While the Employer had the right the move the Employee under the Haddington Road Agreement this was an outcome to a situation that was neither explained or justified to the Employee or his Trade Union in advance or since.

I Recommend that the Employee submit, in writing, to the Employer a list of locations which he is willing to be relocate to and he should supply this within four weeks of the date of this Recommendation.  The Employer should then take the first available opportunity to relocate the Employee to one of these locations as soon as a vacancy occurs but no later than six months from the date of this Recommendation.  For the effects the Employee has been put though as a result of this situation/dispute, I recommend he receive compensation of 3,000 Euros on acceptance of this Recommendation by both Parties, which is to increase to 6,000 Euros after six months if he is not relocated back to one of the locations he names within six months due to no vacancy arising in one of those named locations (for the sake of clarity, it is a total of 6,000 Euros inclusive of the 3,000 Euros compensation).

Relocation