ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00043414

Parties:

Complaints:

Date of Adjudication Hearing:  03/05/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 13 of the IndustrialRelations Act 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The worker is in dispute with his employer regarding its attempt to appoint him to a new role without his agreement.

Summary of Complainant’s Case:

The worker made oral and written submissions summarised as follows:

This dispute relates to a breach by the employer of the worker’s terms and conditions of employment and the employer’s Agreed Framework for Negotiation and Dispute Resolution.

He contends that it follows from and is directly connected to disputes he has already referred for hearing.  He contends that despite acknowledging in writing the requirement to reach agreement with him in relation to his future role in the organisation, the senior managers in the company have attempted to appoint him to a new role without his agreement and in breach of his express terms and conditions of employment, the organisation’s Agreed Framework for Negotiation and Dispute Resolution and the long standing corporate policy of seeking the acceptance of employees in relation to job offers.

The worker argues that his 9 other disputes currently being adjudicated upon are connected to this present dispute.  He contends that the restructuring has provided a platform for continued inappropriate behaviours that the employer so readily and overtly acknowledged were wrong when it accepted the findings of an external investigator’s report in March 2021.

In two of the nine other disputes referred, reference is made to a refusal by the employer to confirm to the worker that it is a condition of his contract of employment that he is required to apply for certain staff vacancies, either established or new when advertised and he was informed that there was no collective agreement for managerial staff.

In relation to the management restructure, he argues that the employer has failed to respond to key emails, has continued to breach its Framework for Negotiation and Dispute Resolution in relation to his right to negotiate and agree key changes in respect of his future role, and has continued to intimidate and harass him by attempting to force his appointment to a smaller position in the organisation without negotiation or agreement.    He further argues that in the two years since the external investigator’s report, the employer’s behaviour towards him by four particular respondents in the investigation has been so tainted with unfairness as to constitute repeated inappropriate behaviour, and that the employer cannot by extension, legitimately claim to have accepted the findings of that report.

He acknowledges the right of the employer to restructure its business and stated a number of times that nowhere in his submissions does he say he disagrees with it.  However, he asserts that the employer and individuals have acted in an intimidatory and coercive manner in attempting to force him into a role.  

Summary of Respondent’s Case:

This dispute arises out of the employer’s decision to restructure its organisation to split the role of District Managers into two separate roles: one managing service delivery and the other managing customer experience.  This new structure is intended to ensure that the business has the same level of focus on the customer experience as it does on driving.  This approach is consistent with other comparable transport operating companies across the UK and Europe.

The employer has now allocated a customer service role to the employee.  The employer has invited the employee to a meeting to explain his new role but he has declined to attend until this process has been exhausted.

In his grievance, the employee asserts that the employer is required to individually negotiate and agree his new role with him.  The employer does not accept that it is required to individually negotiate or agree the employee’s new role with him but has offered dialogue and consultation which offers have been rejected by the employee.

The employer submitted the existing structure and proposed future design to show the changes and key roles of the Customer experience and Service delivery managers.

The employer submits that the restructuring exercise is required to recognise the significant changes the employer faces as an organisation to put customer service and customer experience at the forefront of the business and to continue to build on the proud safety and performance record.                     Organisational structure is a matter for the Director or Executive team for that business unit.  Managerial structures are not normally agreed or negotiated with those within those structures.  This would be consistent across public and private sector organisations. There is no collective agreement in place in the organisation that covers managerial staff who sit outside the collective bargaining agreement.  There is a commitment to work with all individuals involved in this process and whose current role is affected.  The employer offered dialogue and consultation to the employee in respect of this change.  However the employee refused this offer.

The employee has been allocated the Customer experience role at his current location.  The role was chosen by the employer on the basis of his skill set and noting that he had previously (unsuccessfully) applied for the position of Customer Experience Manager.  He has been advised that he will retain his current rates on a personal to holder basis so there is no detriment to him in monetary terms in taking up the new role. 

The employee has continued to advise that he will not engage with the employer until this process is finalised.  However, the employer’s policy in relation to any grievance raised by employees is that work shall continue while a grievance is in process.

The employer is of the view that it needs to forge ahead with the restructuring as all the employees concerned have been advised and need direction in relation to their new roles.

The employer rejects the contention that this matter is connected with his earlier grievances which are the subject of another WRC hearing.  It is quite clear that this is a company wide change for the direction of the business and it has no connection with any other issues as contended for by the employee.  This is a company wide change which is crucial for the future development of the organisation which changes the scope of the employee’s role but not his description as a manager.              The employee has been dealt with reasonably and it is submitted that he should be urged to co-operate with the change.

Findings and Conclusions:

The employer has given a detailed and clear account of the requirement to restructure and the intention to put customer service at the forefront of the business and maintain strong service delivery.   It is regrettable that the worker, a manager obviously held in good esteem by the employer has chosen not to co-operate and has held on to grievances, albeit legitimately held at the time, and vindicated by the report which should have closed the matter in March 2021.   I do not believe that the employer introduced the restructuring as a form of retaliation, and I am sure neither does the worker believe that.   I do not find the attempts by the employer to have the worker engage in relation to the introduction of the new role to have been coercive or intimidatory.  A perusal of the emails and letters from the employer would indicate attempts to engage the worker, and expressed an understanding that change can cause concern to him (letter dated 16th March 2023).  I understand that the worker has concerns about the role change but he did not attend any meetings to discuss same.  He is seeking confirmation that the employer cannot compel him to apply for vacancies.  This is a somewhat moot point now, as the employer has advised him he is being placed into the Customer Service role.  There has been a sort of stalemate and the employer has indicated that the restructure must forge ahead.

I note the options suggested by the employer in the letter of 16th March 2023.  I recommend that the worker decide either to take the offer of Voluntary Severance as outlined, or take up the new role as Regional Customer Service Manager.    

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend the worker decides on the options given to him in the letter dated 16th March 2023 as outlined above.

Dated:   01-August-2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: