Worker

Employer

Anonymised Parties

A Senior Executive Planner

A Public Authority

Representatives

  SIPTU Workers Rights Centre

LGMA

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001029

19/01/2023

The employer is a public authority which has regional areas throughout the country and a head office within each region. The worker lives and has his main work base in the North of the country, which is within of the Employer’s North and West region, which has its head office in a county the West of Ireland.

The worker started his employment in 2016. It was a term of his contract of employment that he would be based in two work locations one office in the North West (close to where he lives) and the other being the head office in the West.

A term of his contract of employment was that he would spend 4 days in the North West office and the fifth day in head office in the West.

There was a review clause in his contract, should the requirements of his contract change.

Soon into the life of the contract the requirement that he travel/ work in the head office diminished to the extent that he was only required to travel to head office infrequently.

In 2020 he raised a grievance that his contract be reviewed to reflect this reality and that his contract – insofar as it identified two work bases - be changed to reflect one work base, namely the one in the North West. If this happened, it would follow that he would be paid travel and subsistence when he was required to travel to North and West head office.

The grievance process was exhausted and the Employer informed him that his contract would not be changed to one base because that change to his contract was not agreeable to the Employer.

The worker took a complaint to the WRC that he was entitled to a review of his contract and the remedy being sought by him is that this review now take place, with a view to his contract being changed to reflect that he was one work base, namely the office in the North West.

The Employer submitted as follows:

The employment contract was agreed in 2016 and signed by the worker.

A term of the worker’s contract is that he has two work bases. One in the North West and one in the West.

The employer is not agreeable to changing that to become one base only, namely the base in the North West only because that is what was agreed to by the parties in 2016 and the Employer wishes to retain the right to require the worker to attend head office one day in five, without having to compensate him any time that he does.

While the Employer may not require the worker to travel to his second base (head office) every week (or may require it hardly at all) the Employer wishes to retain the right to enforce that term of the contract, as and when the situation demands.

Neither a party to an employment contract (nor has the WRC the jurisdiction) to unilaterally change a term in the employment contract.

If the Employer was trying to change a term in the contract to favour it, when the worker had not agreed to the change, likewise, there could be no unilateral change.

The review process that the worker seeks in dispute was already carried out through the worker’s grievance process. In this grievance process worker asked his Employer to consider whether his contract be changed to one base and that request was declined.

On this point, even if a review were to take place, the Employer stated that they will not agree to change the contract from two bases to one base, because to do so would mean that the worker would be entitled to travel and subsistence allowance any time he was required to attend head office and also because it has the potential to impact other workers who might request that if they are required to attend head office from their remote base (at home) that they too are entitled to a travel and subsistence allowance.

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

It is not the role of a WRC adjudicator in Industrial Relations complaints to recommend that a term of an employment contract be changed without the consent of the parties.

In this complaint the worker agreed to two work bases in his contract. His working week was agreed to be 4 days in the North West Office and one day in the (head) West Office. In reality, the work that the Worker does now (and for some time now) only requires him to travel to the West Office very infrequently. However, this is not grounds for his contract to change to become only one base. The Employer enjoys and wishes to retain the right, to require workers to travel to head office base without paying travel and subsistence for the trip. This is particularly so if the worker is required to travel to head office occurs only very infrequently.

It is my view that the remedy being sought - that a review process be undertaken to consider a change to his contract – would be futile given that the Employer already considered his request (when the worker raised his grievance) and given the strong defence that was made by the Employer at the WRC dispute hearing.

I find that, particularly in an Industrial Relations complaint, I do not have jurisdiction to recommend a unilateral alteration to a term of a contract of employment, because there is no right to this. It may only be done through negotiation of the parties and by agreement.

Had the parties intended to allow for Travel and Subsistence to attach when a trip to head office is required, then the contract would have made provision for that. It does not and I am not prepared to insert such a clause without sanction by both parties.

I find this dispute to be not well founded.