ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00002172
Parties:
| Worker | Employer |
Anonymised Parties | A Public Health Nurse | A Public Body |
Dispute:
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 - 00002172 | 30/01/2024 |
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Date of Hearing: 05/06/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following 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(s).
Background:
Summary of Workers Case:
On behalf of the Worker, the INMO made written and oral submissions summarised as follows:
The Worker is a Public Health Nurse who is on a 0.8 WTE plus 1 day’s parental leave contract. She is being prevented by the Employer to return to her work on an 0.8 WTE hours contract following her acceptance of a transfer. Since September 2021 she has worked a 0.8 WTE with one day parental leave which is equivalent to a 3-day week. In December 2021 she accepted a transfer to another Region. She was preparing to return to work following a period of maternity and parental leave on 11 September 2023 when she was advised the position she had accepted on transfer was a full time 1 WTE. She availed of the assistance of the INMO who contacted the employer and submitted that they were in breach of the National Transfer policy. The Employer advised that the Worker had accepted a transfer as 1 WTE. Informal discussions failed to resolve the matter. Further discussions resulted in Management offering a compromise of 1 WTE with 1 day parental leave offering a base closer to her home. The Worker could not accept this as she had 4 children and working with 3 children on a 3-day week was difficult enough. Management suggested submitting a flexible working application. However, there is an 8 year wait and this further strengthened the resolve of the Worker to assert her contractual rights. The Union offered a compromise of 0.5 WTE and when this was rejected, sought to have the grievance procedure utilised. However, Management refused the request, stating that she was not a staff member of the receiving Region. On 30th January 2024, the Union advised Management that the matter was being referred to the WRC and requested that the Worker be allowed to return to her previous agreed terms and conditions pending adjudication. This was not facilitated.
It is argued that on accepting her transfer, the Worker was entitled to her contractually agreed terms of employment. It is argued that by accepting the 0.8 WTE prior to the transfer offer, the Worker’s agreed conditions of employment cannot be altered without her consent. Further, the National Transfer policy states that “where staff are employed on national standard terms and conditions, these will continue to apply on transfer. In all other cases, the terms and conditions of the receiving location will apply.”
The Worker has relocated her family to the location and now finds herself in a situation where she faces employment uncertainty and financial peril. The refusal of the Employer to process the transfer in accordance with the Transfer policy is unjust. A more pertinent issue is the refusal of the Employer to process the Worker’s grievance through the grievance procedure.
The transfer offer letter states that once she accepted the transfer, her current position would be backfilled by the Student Sponsorship scheme and would no longer exist. This further strengthens the argument that the Worker’s grievance should be heard by the receiving location.
Considering Management’s abject failure to adhere to its own policies and process the matter, and given her treatment as a highly experienced employee, a valuable employee and a working mother, it is submitted that the Worker was incorrectly prohibited from returning to work. She was denied access to grievance procedures and it is requested that she be given appropriate resolution and be compensated appropriately.
Summary of Employer’s Case:
The Employer made written and oral submissions summarised as follows: On 10th December 2021, an expression of interest (EOI) was posted for 4 X 1 WTE posts on offer for transfer in accordance with the National Transfer Panel. The Worker applied and accepted a position of 1 WTE in the location of her choice. On 12th July 2022 a phone call between the Worker and Management was held to agree a start date. During this call, the Manager confirmed that the post was 1 WTE with 1 day’s parental leave, i.e. working 4 days each week. the Worker stated that she was currently working on a 0.8 WTE plus 1 day’s parental leave, i.e. 3 days each week. This was the first the Manager heard that the Worker was on a 3 day week. No start date was agreed as she sought a more flexible working arrangement than could be facilitated given the service needs and the fact that there were 8 other applications from staff in the same type of role for flexible work arrangements. The INMO contend that the Management are in breach of the National Transfer Policy which came into effect on 1st April 2015. However, clearly contained in the FAQ in the policy is the following: “Can I transfer if I work flexible hours?” “Yes, you can apply for a transfer. However the receiving location may not be able to facilitate the same arrangements you currently have.” It is argued that as the service needs cannot facilitate her flexible working request, this does not translate into a breach of the policy. Should the Employer concede to a more flexible working arrangement for the Worker in this case, this would have significant and far reaching consequences given the number of employees who wish to avail of a transfer in a grade for grade situation – Management offers and the Employee accepts a 1 WTE - and then challenges the working arrangements of the position offered. This would have a detrimental impact on the services provided where enhanced flexible working cannot be facilitated based on service needs. Regarding the INMO’s complaint that the grievance was not entertained by the receiving location, it is submitted that Management in the receiving location were unable to hear the grievance as she was not an employee of that location. Nevertheless, discussions were held with the Worker and her INMO representative in order to try to resolve the issue and a compromise was offered which would facilitate a base close to home and flexible start/finish times. In relation to the claim that compensation be awarded for loss of earnings, it is submitted that as the Worker chose the date herself on which she would start, and there was no agreement, it was her decision to take unpaid leave. She could have returned to the role she had before the transfer request, pending resolution, but she chose not to and remain on unpaid leave. It should be noted, that contrary to the INMO argument that she “suffered stress and financial burden following relocation of her family to take up her post” the Worker actually relocated in September 2021, some 3 months before the expression of interest in transfer. For the reasons outlined, it is submitted that the claim should be rejected.
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Conclusions
The Worker was offered and accepted a 1 WTE position on transfer while she was on a 0.8 WTE plus 1 day’s parental leave.
The position of the INMO is that the Employer acted in breach of the National Transfer Policy by not allowing the Worker to transfer on her existing terms, i.e. equivalent to a 3 day week. It appears that the definition of National Standard Terms and Conditions is disputed between the parties. The Labour Court has ruled a number of times that the clarification or interpretation of National Agreements are not in the remit of an Adjudication Officer under the Industrial Relations Act. I note that the Employer cannot facilitate the 3 day week for a number of reasons, not least of which they have 8 other applications for flexible working, and to allow the Worker flexible working would cause repercussive effects. One of the more concerning aspects to this dispute is the refusal by the Employer to hear the grievance. I recommend that the grievance be heard by the Employer as soon as possible if necessary at Central level.
I note that the Worker has been out of work and on unpaid leave now for almost a full year. There was a compromise offered by the Employer on 3rd January 2024:
1 day’s parental leave each week on 1 WTE (4 day week)
Application for flexible working considered along with others in 2024
Flexible start/finish times to facilitate childcare arrangements
Base/location close to home to facilitate childcare arrangements.
Recommendation
I recommend that the grievance be heard by the Employer as soon as possible and if necessary at Central level. In the meantime, the Worker should return to work on the basis of the compromise offered as a temporary measure. Because this dispute has taken a considerable time and the Worker had to take unpaid leave to facilitate the pressures involved in balancing domestic responsibilities, I recommend the Employer offer her a gesture of goodwill in the form of €3,000 compensation.
Dated: 09-08-2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Industrial relations dispute, compromise agreement, transfer policy. |