Worker

Employer

Anonymised Parties

General operative.

Local Authority

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

11/08/2021

The worker has presented a dispute that he was disciplined by way of a transfer to a different position contrary to fair procedures. This transfer resulted in the loss of overtime opportunities for him.

He is seeking a recommendation that he be returned to the position of yard man and that he should be compensated.

He submitted his complaint on 11/8/2021.

The worker had been employed as a yard man for 7 years in one of the local authority’s depots, and in a general operative’s position for the previous 14 years.

On 2 January 2021, the worker’s supervisor rebuked him for having gone to the shops, adjacent to the depot, and for having left the yard unattended while he collected his lunch. The supervisor considered issuing the worker with an advisory note but did not and let the matter rest there. On Monday 4 January the supervisor told him that he was removing him from his position as yard man and placing him on street handcart duties, a decision supported by the supervisor’s manager, the Inspector. The worker appealed the decision to no avail.

He is currently working out of the same depot but on handcart duties. This entails collecting waste, bringing it back to the depot and disposing of it. Yard man duties enjoyed a greater degree of responsibility overseeing the facilities in the depot.

The union contend that he got no warning. They argue that the employer has breached their own disciplinary procedure. Within that procedure, and under the heading, Employee Rights, the employee is entitled to know the case against them, to be given an opportunity to set out their case, to have representation and the right of appeal. But the inspector decided there and then on the spot that the complainant was being removed and was to take up handcart duties. Aside from breaching their own disciplinary procedure, the employer is also in breach of S.I 117 of 1996 in failing to offer the complainant the right to set out why he had left the yard.

In addition, the worker has lost the opportunity to avail of overtime opportunities.  He worked on average 9 hours a week in overtime while employed as a yard man at a rate of €32 an hour. His replacement earned €10,000 in overtime since taking over in January 2021.

The union are seeking compensation of €20,000 for the worker to incorporate the loss of overtime and the injury caused to the worker as a consequence of the sanction.

The employer decided to move the worker to other duties (handcart duties), within the same waste management department. This was done for operational reasons. Reassignment of duties is permitted in his contract. It was not a disciplinary sanction.

On 2 January 2021, the complainant left the yard, unattended, during working hours, went across the road to shop and returned with shopping and a juke box.

The supervisor spoke to the worker, advised him of his intention to issue him with an advisory note, but desisted from same as the worker said that this would ruin his weekend. The supervisor told the worker that he would consider the position over the weekend.

On Mon 4 January, the supervisor discussed the situation with the inspector, advising him that the worker was insufficiently reliable and should be moved to handcart duties. The inspector agreed. There is no loss of status, and the pay remains the same. The worker was informed, refused to do the duties assigned to him and was sent home on pay. This behaviour went on for a week. He appealed it twice, but the decision was upheld. At the appeal the worker accepted that he had left his work without permission to carry out a personal task.

The employer stated that he needed to be able to depend on the yard man who oversees the departure and arrival of waste disposal trucks. He is expected to sign people into the yard particularly during the period when Covid -19 was at large. He had been given an advisory note on three previous occasions not to leave the yard without permission and disregarded them. These notes are outside of the disciplinary procedure and are designed to encourage best practice.

In relation to the stated loss of overtime opportunities, the employer stated that the worker did overtime between 12 September - 27 December 2020. This overtime was implemented specifically to oversee Covid -19 measures. After the worker was transferred it stayed with the same function, the yard man, and it ceased on 3 April 2022. The worker had not put himself on the list for overtime thereafter.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties

Firstly, the employer is quite entitled to address an employee’s unauthorised absence from his workplace.

However, notwithstanding the employer’s right to assign staff to different locations, I do not see this as merely a transfer for operational reasons. The worker was moved after having failed to comply with ‘house rules.’ His transfer was triggered by his unauthorised exit from the depot. Having some responsibility for traffic in and out and of the yard and some oversight functions – if limited- can arguably be seen as offering greater responsibility that that offered to an operative assigned to handcarts.

I consider that it was a lapse on the employer’s part not to have applied the disciplinary procedures namely the section on, Employee Rights, in which the employer is obliged to set out the case against them, to give the employee an opportunity to set out their response, and to afford due consideration to that case.

The second adverse consequence for the worker was the loss of overtime opportunities.

I note the employer’s statement that he has not put himself forward for overtime with the worker stating that up to 2021 he worked on average 9 hours a week overtime at double time rates which were €32 an hour.

I note the findings in LCR 21745 Dublin City Council v a Worker where the Labour Court concluded that a sanction should be time limited. In the instant dispute this sanction is not. I note LCR21965, Leitrim Co Council v A Worker where the Labour Court recommended that the worker be transferred back to his position in circumstances where the employer argued that they had the right to deploy employees as they see fit and as needs arise.

I recommend that the employer transfers the employee back to the first available yard man vacancy on the clear agreement that all policies regarding attendance must be complied with.

 I recommend that the employer pay him a week’s wages in compensation for the lapse of fairness in the execution of this move.

Given that the period between the transfer of the worker and the ultimate rejection of his appeal amounted to a period of seven weeks, after which he did not put himself forward for overtime, I recommend, in addition, that the employer pay the worker 2 weeks’ overtime based on 9 hours a week.

Intradepartmental transfers.