Employee

Employer

Anonymised Parties

A Traffic Warden

A County Council

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00056340-001

11/02/2023

The Employee is employed as a Traffic Warden with the Employer since early 2020.

The Employer formalised a Transfer Policy in September 2020.

On September 3rd 2021 the Employee applied for a transfer to a General Operative role. He was informed that the position he occupied was not eligible for a transfer. The Employers policy required that the position required a minimum of five years’ service to be eligible for a transfer with certain criteria established to evaluate applicants with the date of application being the primary consideration. Two transfers have been offered based on length of application for the new post. The Employee contested that this policy was unfair and sought to be transferred to another post.

When the Employee commenced employment, he was not informed of this restriction on transfers and was told at interview there would be opportunities for advancement.

He advised he requested a transfer following unacceptable levels of workplace violence and abuse since he started work in 2020. He alleged he had received this whilst training and working as a Traffic Warden for the Employer and the only solution provided by the Employer was the Laya EAP service which cannot make any recommendations or reports to the Employer as it is a confidential service. The Employee advised he has used the service previously and also availed of counselling sessions but maintained that it does not provide any solutions to the prevention of workplace violence. The Employee questioned the Employers willingness to deal with the issues involved.

The Employee alleged the workplace is toxic for years and morale is at all-time low. He maintained that things are so bad within the section that three new recruits have left in the last 12 months along with two senior Traffic Wardens with nearly ten years' service. He alleged there have been three serious physical assaults on Traffic Wardens within the last five years and numerous incidents of aggressive verbal and intimidatory abuse on a daily basis.  He advised that if a Warden suffers any form of workplace violence it is left to the Warden on their own to take a civil case against the perpetrator's.

The Employee asked to be re graded as it was the only option available through the Employers policy on transfers. Following completion of the various levels of the grievance policy he was left with no other choice but to put his case to the WRC. He stated he spent over four months out with workplace stress in 2022 following an incident of workplace violence and that he was advised some level levels of verbal abuse were to be expected in the job. He advised staff are offered no training opportunities to progress or personally develop themselves.

He advised that up until 2022 the Employers policy was that Traffic Wardens are in a non -transferable position but the Employer changed that position stating they will grant a transfer to just Traffic Wardens with over five years' service to a lower grade than what they are on since a Labour Court agreement. He advised a transfer has been offered to one Traffic Warden but this has not been accepted at this point.

He advised that the Employer has addressed the matters relating to his grievance is factually incorrect. He had not received an offer of a transfer to the grade of general operative as per transfer arrangement for Traffic Wardens and advised it has only been offered to the two longest serving applicants with five years' service. He questioned whether the Employer shows equity or fairness to all its employees with Traffic Wardens being the prime example.

He advised it never stated in his contract of employment that he was in a non transferable position and that it was stated by the interview panel and his line manager that the Employer provides great opportunities to progress and upskill. He advised that he has found after over three years that this is clearly not the case. He concluded by stating that the current offer of a transfer to a lower grade is an insult to the intelligence and hard work of those who carry out the thankless and dangerous role of Traffic Warden.

Traffic Wardens have historically been paid at General Operative rate. There is no link between the grades other than for pay purposes and the roles are separate and distinct.

On 3rd September 2021 the Employee wrote to his line manager requesting a transfer from his position. Per the Employer’s Transfer Policy the Employee formally applied for a transfer on 21st September 2021 citing health and safety concerns and that he suffered from anxiety and stress. Following this being notified to the Employer he was offered support with the Employer’s Employee Assistance Programme.

On 27th October 2021 he was informed following the application that the post of Traffic Warden was a stand-alone post and specific grade in the Employer and not transferrable with other grades. He was also advised to contact his line manager on the other matters raised in terms of relevant risk assessments, safe work practices and procedures.

On 13th October 2021 the Employee raised a formal grievance which was heard by the Head of Human Resources on 5th November 2021 and determination issued on 22nd December 2021 stating: “You are employed in a specific grade with specific terms and conditions and is grounded in the fact that the position of General Operative is a different post with separate terms associated with it. Therefore, a transfer cannot be facilitated. I am satisfied that this pay scale is for salary purposes only and is not linked to the General Operative role. I also note that since our meeting the pay scales for Traffic Wardens have been revised and are now linked to the post of Refuse Collector. I am satisfied that the transfer request was refused correctly on the basis that the request did not meet the criteria as set out in the transfer policy as you were employed following interview to the position of Traffic Warden and the request related to another distinct grade with the Employer. The transfer policy also stated that transfers will usually at the employee’s substantive grade. Both Traffic Warden posts and General Operative posts are filled by separate competitions. I don’t believe that transferring to General Operative is a transfer at the substantive grade.”

The Employee appealed this determination.  The appeal was not upheld.

The Employee subsequently wrote to the Employer on 7th February 2022 requesting the option to regrade to a lower grade. In his correspondence he stated he would like to transfer to a lower grade than his current position of Traffic Warden, and also that he was aware that regrading to a lower grade would impact his salary, pension allowance and other benefits.

The Employer responded on 4th March 2022 advising that the role of Traffic Warden was not interchangeable with any other grade and to contact the Employer’s Learning and Wellbeing team as the point of contact for the Employee Assistance Programme in relation to mental and physical health issues raised.

 On 29th September 2022 the Employer wrote to all Traffic Wardens seeking expressions of interest to explore the possibility of facilitating a transfer request for Traffic Wardens, subject to Employer Business needs. The Employee submitted his expression of interest on 1st October 2022 with the Employer responding on 25th November 2022 reiterating the previous correspondence of 15th July and noting that following discussions with the senior managers in his department, the Employer was not in a position to facilitate two transfers; and would be writing to confirm same to the two longest serving transfer applicants and was advised to check his email and other locations where vacancies would be advertised.

 The Employee raised a grievance in relation to the Employer’s Transfer Policy on 28th November 2022 with a hearing taking place on 25th January 2023. The Grievance Outcome stated that:

“On an exceptional basis and limited only to existing Traffic Wardens with in-excess of five years’ service in the role of Traffic Warden, the Employer are prepared to consider on a once off basis, a transfer to General Operative roles. These transfers will be based on organizational needs and the availability of replacements to ensure business continuity, with Traffic Wardens on the transfer register longest being considered first. These are permanent transfers which cannot be reversed once accepted. As your current salary is greater than the maximum of General Operative Scale, you will remain on the salary point you are currently on, and no further incremental progression will apply. When a suitable vacancy arises, in line with business need and your placing on the transfer register, Human Resources will contact you.” 

The Employee was employed as a Traffic Warden, and this was a specific role that was not interchangeable with other roles in the Employer. This was equally the same for all Traffic Wardens employed by the Employer.

The Employer’s Transfer policy defines a Transfer as “A transfer is the horizontal movement of an employee from one job/section/department to another job/section/department within the same organisation where the employee's salary, status and responsibility remain the same”.  

Traffic Warden is an entry-level position.  Given the specialised and explicit nature of Traffic Warden duties, it is it was not possible to transfer Traffic Wardens to a position where duties/responsibilities remained the same. The Employee was employed as a Traffic Warden following competition.   In common with all other staff, he is entitled to apply for any positions for which he has the relevant experience and qualifications.  

Staff promotion across this local authority and within the local government sector nationally is by means of competition and selection is merit based. The Employee is offered the same equality of access to progression as other employees.   If the Employee wishes to progress within his career, then he is entitled to compete for competitions in the same manner as other staff.   

Notwithstanding the above, the Employer was not in a position to transfer at the time of the Employee’s request for operational purposes. The Employer’s Transfer policy provides “There is no entitlement to a transfer. However, depending on business need and ensuring the organisation continues to run effectively, the organisation will endeavour to facilitate transfer requests where possible”. Furthermore, the Transfer Policy provides that persons longest on the list will be considered first.  The Employee’s application is not the longest on the transfer list and no business need was identified in relation to a Transfer. 

The Employer’s Transfer policy provides that the employee “must have satisfactorily completed probation whilst employed in a permanent capacity and have a least 2 years employment in a permanent capacity in their existing grade and post, within the Employer.”   At the time of his application, the Employee did not have the requisite 2 years required for transfer purposes.  

Following enquiries into transfers by a number of Traffic Wardens, the Employer reviewed its position on this and in September 2022 sought expressions of interest in transferring from the Traffic Wardens. Four Traffic Wardens, including the Employee put themselves forward. In November 2022 the Employee raised a formal grievance that “it is not acceptable that Traffic Wardens are allowed transfer to a G.O. grade as currently Traffic Wardens are on a Refuse Collector Grade. Accepting a transfer in its current (Employer) stance would be a demotion.” This was contrary to the Employee’s previous position where he had formally requested a transfer to a lower grade with accompanying rate of pay.

The Employer further reviewed this position and in March 2023 wrote to all Traffic Wardens advising that on an exceptional basis and limited to existing Traffic Wardens with in excess of 5 years’ service in the role of Traffic Warden, the Employer was prepared to consider transfer to General Operative duties; with the Traffic Warden remaining on their current salary and no further incremental credit applying post transfer.  Transfers would be based on organizational needs and availability of replacement to ensure business continuity with Traffic Wardens longest of the transfer list being considered first. Transfers would be permanent and would not be reversed.    The further enhancement of the terms of transfer to Traffic Wardens, including the Employee is a clear demonstration of the positive manner in which the Employer has sought to respond to Traffic Warden transfer requests, including that of the Employee.

 A transfer on the terms above has been offered to one Traffic Warden and it is expected that a further such offer will be issued shortly, depending on operational requirements and vacancies arising.

The Employee’s response to correspondence issued to him with regard to the above was as follows “This matter is now in the hands of the WRC adjudicator following my original grievance from 2022 on this matter”. 

The Employer has addressed the matters which formed the basis of the grievance submitted by the Employee in 2021. At this stage, the Employee has rejected the offer to move to General Operative post with existing pay and conditions even though he had requested same.  He has also rejected the mechanism provided whereby existing Traffic Wardens, subject to operational need can transfer an effectively red-circled basis holding their current salary and conditions.   

The Employer must manage its staff and must provide a service to the public.  It must also show equity to all staff in how it approaches their ability to transfer across the organization.  The Employee was aware of the terms, conditions and duties of the position of traffic warden when he took up employment.  The current transfer arrangement currently available to staff is exceptional and demonstrates the goodwill shown by the Employer in this matter.

There are a number of issues to deal with in this dispute.

Firstly, whether the Adjudicator has jurisdiction to deal with the dispute as the Respondent argued it was a collective issue and therefore under section 13 of the Industrial Relations Act, the Respondent suggested I did not have jurisdiction.

Secondly, whether the Employee is covered by the Transfer Policy.

Thirdly, whether the policy is discriminatory compared to other classifications of employees working in the Organisation.

Finally, whether the policy terms are fair and reasonable.

On the first issue of jurisdiction the Employee is the only employee who has referred the dispute.

While there are 7 other employees employed in the same category, none of them have joined in this dispute, and some have the necessary service to qualify for a transfer so therefore have no dispute with the Employer on the Transfer Policy. The Employee raised the issue that the Policy was not in his contract of employment and unilaterally introduced by the Employer and he has a dispute about how it affects his terms of employment specifically. Section 13 states the following and now applies to Adjudicators since the Workplace Relations Act 2015. None of the restrictions on referral included in Section 13.2 below apply to this case. On this basis I accept jurisdiction of the dispute.  

It is also relevant to note that the Employer was given the opportunity (as is standard with all IR complaints to the WRC) to reject acceptance of the complaint and it chose not to do so.

The Employee received a contract of employment which outlined 17 different policies that affect him. The Transfer policy was not in effect at the time he commenced employment and introduced subsequently by the Employer. While it would be unreasonable to say an Employer cannot introduce a policy without the agreement of employees, equally it would be unreasonable to say an Employee cant object to a policy and how it affects them when it was introduced after they commenced employment. The Employment contract does not say the Parties will be bound by all Policies introduced by the Employer or its handbook, which is common in many employments. Neither does it appear that the policy was introduced after consulting with employees affected or with their Trade Union. So, there are questions about the legitimacy of the Transfer Policy and while I am going to err on the side of the Employer that they have the right to introduce policies, and specifically the Transfer Policy, the consultation involved in how it was introduced could have been more inclusive.  I find that the Policy does apply to the Employee.

At the Hearing I inquired as to how many other classifications of employees are covered by a restriction in transferring by reason of a time that must be served before they can be eligible for a transfer. It is important to note nothing in the policy restricts an employee from seeking a promotion. The policy only applies to lateral positions. It also restricts transfer to a lower graded position. Subsequent to the Hearing the Employer advised that all categories of employee were now covered by the policy. Therefore the policy itself is not discriminatory to Traffic Wardens. The Employer confirmed that the Employees situation  in this disputes situation does not fall within the Terms of the Transfer Policy.  In effect the transfer is being red circled. In this instance a requirement for 5 years service is being applied. Because the transfer is being offered on a red circled basis to a lower grade, outside of the normal Transfer policy and unique to the Traffic Wardens I find it is not discriminatory to have a length of service time above two years as a pre-requisite. I will deal with the minimum service timeframe I recommend in my Recommendations below. On whether the terms are fair and reasonable it does not seem to the Adjudicator that the role of Traffic Warden is so unique that an employee should be required to spend a minimum of five years in the role before being allowed transfer. From the Employee’s submission to the hearing some of the holders of the position do not seem comfortable with the amount of abuse received according to the Employee and turnover is high in the role. This could be by its nature, the role draws hostility from the public, unfairly. The Respondent argued that there is extensive training given to Wardens, but the employee questioned this, and the Employer has a training and development programme in place which both parties agreed to engage in within a month of this Recommendation. The Employee also sought to have training in matters, employment law, which is outside the scope of his role, and this should be done on his own time if he wishes to pursue that avenue of learning and development.

The Hearing was also advised that a current employee has been given the option to transfer and is considering this option. The Transfer Policy states that a successful applicant must decide within 5 working days to take up the offer of a transfer but this does not seem to be implemented strictly. It is not unreasonable that employees be given a timeframe, say one month, to make up their minds on whether they want to transfer or not and if not, then the offer can be given to the next employee on the transfer list providing they meet the criteria. I recommend the Employer amend their transfer policy to include a one month time frame for a decision to be made by a successful transfer applicant and that this be implemented strictly, unless there are mitigating circumstances i.e. out sick, on holidays etc. where a further month could be allowed to the decision maker.

With regard to the Employees suggestion that the policy is unfair I do not concur as it offers transfers on the basis on length of time on the transfer roster. This is not an unusual method of selection and affords those longest service the first opportunity to move from the post.

I Recommend the Employer amend their Transfer Policy to introduce a strict one-month timeframe for an employee to make their decision on the offer of a transfer and that any current open offers be given that timeframe from the date of this Recommendation to make a decision.

I accept the Employers argument that the investment in a new Employee in a role justifies them spending time in the role before being allowed transfer and I see no reason to recommend the Transfer Policy be reduced below 2 years eligibility requirement.

The Employee with the within grievance should accept he has to take his place in line with those with longer service on the Transfer Register than him.

I recommend that the Employer, in this unique situation only, reduce the length of service requirement from 5 to 4 years for all Traffic Wardens, including the Complainant, to become eligible for a transfer. The Employee would therefore become eligible for consideration for a transfer in November 2023.

I also Recommend that the Transfer Policy be included as part of the offer of employment to any new Warden or staff member hired.

While not a central issue in the specific trade dispute concerning the Transfer Policy it does appear that the role does require much more consideration from a health and safety perspective of the Wardens involved and the Employer should give due consideration, following consultation with the staff involved, as to what extra training would be of benefit to them to make their role safer and reduce turnover.

I recommend in favour of the Employer.

Terms of Employment