ADJ-00038868

Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Government Agency

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00042208-002

29/01/2021

The worker states that she expressed an interest for a role with the respondent on 7 September 2020 which resulted in her exclusion from any further suitable job opportunities on that panel. She states that the job was never advertised for location C, but it was location F. The worker states that if it was location C, she would never have applied for it due to her previous employment based in Waterford and dealing with traffic congestion. The worker submits that this resulted in her losing her place on the panel. The worker states that two days before she was due to start, she received a call from the employer requesting her to provide cover and that her initial assessment would be out at location C for a week or two. The worker states that she agreed to the request but stated that she could only do it for a week or two because of her past experience with traffic in Waterford at rush hour.

The worker states that her first day at location F was not until 7/12/2020 and her second day was not until a month later which was on 07/01/2021. She states that the first rota was for January 2021 which required her to work 73% of her time at location C which were contrary to the terms of her contract which stated that she only had to do temporary cover at location C. The worker states that her employment was terminated by her not fulfilling a contract that was null and void from her commencement with the respondent.

The worker states that she could not continue to drive from Wexford to location C from a monetary and time point of view. The worker states that she continually communicated to the employer that she could not continue to work at location C and that it was on this basis her employment was terminated.   

The worker states that she was shocked, stressed and upset by her unanticipated dismissal. She states that it had a big effect on her and her health suffered as a result. She states that since then, her career in social care has come to a halt. The worker states that she felt as the new staff member on probation she was being exploited.

The employer states that in September 2020, the worker expressed an interest in a Clerical Officer post with Waterford/Wexford based service. It states that this post was advertised with a base at location F in Waterford. The worker was offered and subsequently accepted this post. The employer asserts that candidates were strongly advised to contact the Service Manager to discuss specific details of any post prior to acceptance. It states that there is no evidence that the worker attempted to make any prior contact.

The employer states that the worker commenced as a Clerical Officer with it on 16 November 2020. It states that she signed the contract which clearly stated: “Your initial assignment will be to location F {my emphasis}. You may be required to work in any service area within the vicinity as the need arises”. The employer states that this is standard in all contracts of employment as management reserve the right to assign staff within their services as required.

The employer states that on 17 November 2020, the worker was issued with a welcome email which outlined details with regard to her first pay date and stated that her probationary period would expire on 16 November 2021 as set out in her contract of employment. The employer states that in advance of the worker’s commencement, Ms. H, Line manager of the worker contacted her to advise that due to circumstances outside of management’s control, the worker would be required to report to Location C on her commencement date. The employer states that Location F and Location C are 4 kms apart. The employer states that this was to facilitate cover of a critical post covering front desk for the Duty Team. The employer states that the worker was advised that this was a temporary measure and would be subject to review.

The employer states that on 24 November 2020, the worker raised concerns with her supervisor Ms D with regard to the temporary role she was covering and the distance from the location of her initial assignment, location F, as outlined in her contract of employment. Ms. D confirmed to the worker that cover for the front desk was the service need at that point and management reserve the right to assign staff as service needs dictate. The employer asserts that it was also confirmed to the worker that cover for the front desk would be required on an ongoing basis for periods of leave but that this would be on a rotational basis between all Clerical Officers in the Service.

The employer states that on 24 November 2020, the worker requested annual leave over the Christmas period for a period of three days. The employer states that it was later confirmed to the worker that this request could not be facilitated but that she could take annual leave on 23 December, if she wished. The worker subsequently submitted a medical certificate for the days she had not been granted annual leave up to 7 January 2021.

The employer states that during the period 24 November to 8 December, the worker raised the issue of her substantive post at Location F and was advised on a number of occasions that her temporary reassignment to Location C would be subject to review and was only a temporary measure due to staffing issues. The employer states that on 21 December 2020, Ms. G, Business Support Manager met with the worker to discuss the temporary reassignment to Location C. At this meeting the worker was advised that a rota was being developed to reduce the time she would be required to provide cover at the front desk.

The employer states that on 22 December 2020, the worker sent an email to Ms G advising that the distance between the two locations was a total of 8 km and that the journey was one additional hour per day which was an extra cost to her. The worker also raised an issue with regard to her pay and that she could not afford the additional cost for petrol for this journey. The employer states that it is not responsible for travel time between home and the workplace for staff, in addition, the worker signed a contract, which clearly stated that she may be required to work in any area within the vicinity.

The employer states that it subsequently proposed to pay mileage to the worker for the days that she was required to work at Location C. It states that this is outside of normal custom and practice but was a gesture of goodwill considering the change in location the worker was required to work, notwithstanding that the assignment of staff is within the discretion of management to meet service needs. The employer states that the worker was requested to confirm her agreement with this arrangement, however no response was received from her.

The employer states that on 5 January 2021, the worker advised management that she was unhappy with her current position and had requested her union official to organise a meeting to discuss same. The employer states that a meeting was scheduled on 8 January 2021. During this meeting it was outlined that a rota had now been put in place but that no end date could be given at that point as it was dependent on the recruitment process. However, this would allow the worker to work in both locations thus reducing her travel time and petrol costs. Previous arrangements with regard to mileage were reiterated. The employer states that the worker requested payment for travel time, however this is not provided for under the Guidelines for travel and subsistence and was not agreed by management. The employer states that the worker was asked to confirm her intention to remain in her role with the employer and a further meeting was scheduled for 11 January.

The employer asserts that on 11 January, during a meeting with management and her Union, the worker indicated that she would be resigning from her post. Ms. G confirmed by email that the worker’s resignation was being accepted and provided the worker with relevant documentation for completion. The employer states that on 15 January, the worker advised that she was willing to work at Location F but not at Location C.  The employer informed the worker that the service need was in Location C and that this arrangement was temporary. The worker was advised that this was deemed to be a reasonable management request and covered by her contract of employment, therefore continued failure to follow this reasonable management request would result in the disciplinary procedure being considered.

The employer states that on 18 January, a further meeting was held with the worker and her Union. At this meeting, the worker confirmed that she was not intending to resign but that she could not work from Location C. The worker was reminded at this meeting that she remained on probation at this time and had continued to fail to follow a reasonable management request. The employer states that a meeting took place on 20 January with the worker and her Union and the worker was advised that following consideration of all matters leading to this point, Ms. G felt she had no option but to consider the worker’s termination for continued failure to follow a reasonable management request despite numerous engagements and additional supports put in place for her. The employer states that the worker was provided with a letter of termination at this meeting and was advised of her right of appeal. The employer states that the worker’s cessation was processed on 1 February 2021 as she had not appealed the decision to terminate her contract within the 7 day timeframe provided pursuant to the disciplinary procedures.

Having carefully considered all the evidence adduced in the within dispute, I find that the claim by the worker of unfair dismissal is not well-founded.  I note that the contract of employment which the complainant signed had the following statement “You may be required to work in any service area within the vicinity as the need arises”. I note that the employer put supports in place to assist the complainant including the payment of mileage to facilitate the assignment to Location C. I find that fair procedures were applied leading up to the complainant’s termination of employment. I am cognisant that the complainant had the opportunity to appeal the decision to dismiss but did not do so. In all of the circumstances in the within dispute, I find that the complainant’s claim of unfair dismissal is not well-founded.

In the instant dispute, I find that the claim of unfair dismissal is not well-founded. Accordingly I do not recommend in favour of the complainant.

Industrial Relations Acts, unfair dismissal