LCR22945

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00040764 (CA-00051830)

BACKGROUND:

This is a double appeal. 

The Employer appealed the Adjudication Officer's Decision under Section 13(9) of the Industrial Relations Act 1969 on 26 September 2023. The Worker appealed the Adjudication Officer's Decision under Section 13(9) of the Industrial Relations Act 1969 on 2 October 2023.

On 22 August 2023 the Adjudication Officer issued the following Recommendation:

"I recommend that the employee be provided with a set office base( not hot desking but the location of which in the town is to be determined by the employer) in her current geographical location and also in the location of the Rehab and Recovery Team referenced in her signed contract on the basis that She commit to working  from her desk in the R and R base  one day per week on a day to be decided by her line manager and around which there will be some flexibility on the part of the employee. The in-person arrangements to be  combined with a minimum of one day per week working from home(and any additional days to be decided under the blended working policy) and on a work schedule to be agreed with the line manager where additional  work with the R and R team is required by the line manager.

Effectively three days per week in her current geographical location. Effectively up to two days on R and R teamwork at or near that base as required in her role including developing and servicing of clients in that geographical areas noting again that it is not for the undersigned to stipulate or restrict operational requirements.  The purpose of this recommendation is aimed mainly at trying to resolve a problem about a base-while not interfering with operational requirements as determined by the employer.

The matter of expenses is one for the employer to pay in accordance with the employer policy/revenue guidelines in these matters. This recommendation to be implemented with effect from 1 October 2023 and to be subject to review at the request of either the employee or the employer no earlier than the end of March 2025. Management to clarify the expenses regime to apply from the same date.”

A Labour Court hearing took place on 26 March 2024.

DECISION:

The dispute before the Court concerns the worker’s base location. The worker has worked in Roscommon Town since commencing her employment with the HSE in 2013. She is challenging the HSE’s decision to move her base location to Ballinasloe.

The worker was promoted to the position of Senior Occupational Therapist - Rehabilitation and Recovery Team in 2016. She continued to work from her usual base in Roscommon town. In 2018 she went on maternity leave and subsequently arranged her childcare in Roscommon town. In May 2020, the worker was taken by surprise when she was told that she would have to relocate from Roscommon town to Ballinasloe.

The worker objects to the relocation of her work base to Ballinasloe, as this would result in additional travel time and time away from her family. She relies, in support of her position, on her 2016 contract of employment which states that she will be assigned to services in the Galway / Roscommon area. She asserts that a custom and practice is now established that she is based in Roscommon town. Furthermore, her client base is mostly in the Roscommon surrounding areas. The worker is willing to be flexible and work in another location in Roscommon town. She has also offered to work from home. A hot desk arrangement is unsuitable as she needs a storage facility for client documents.

The HSE’s position is that it conducted a promotional recruitment campaign for Senior Occupational Therapists in 2016. The worker expressed an interest in and confirmed acceptance of a Senior Occupational Therapist post as part of the Rehabilitation and Recovery Team based in Ballinasloe. As a result of that appointment, her base location is Ballinasloe. The HSE has engaged with the worker since 2016 about her work location, and her grievance in relation to that matter has progressed through Stages 1,2 and 3 of the grievance procedure.

The HSE submits that the worker applied for and accepted a position of Senior Occupational Therapist in the full knowledge that the position was based in Ballinasloe. The HSE operates a patient led service where operational requirements determine where a worker is based. The worker is a member of the Rehabilitation and Recovery Team which is a multi-disciplinary team based in Ballinasloe, and there is a requirement that she attend at the post where the job is based. Concession of the worker’s claim has knock on implications for others seeking flexibility in relation to their work location.

The Court has considered the written and oral submissions of the parties.

The worker is assigned to work in the Galway / Roscommon area and the dispute before the Court concerns the worker’s base location. The worker contends that she was taken by surprise in 2020 when she was instructed to attend for work in Ballinasloe. The HSE maintains that there was ongoing engagement with the worker about her work location since her appointment in 2016. Notwithstanding the difference between the parties about that matter, the worker’s position before the Court is that arising from an established custom and practice, she is entitled to continue to work from a base in Roscommon town. The Court has some difficulties with that position. The Court was told that the worker opted to apply for the position of Senior Occupational Therapist in 2016 as a career choice and that she was fully aware that the position was based in Ballinasloe at that time. The Senior Occupational Therapist post is part of a multidisciplinary team based in Ballinasloe, and the Court was advised that the work undertaken by the worker emanates from Ballinasloe. The Court was further advised that other members of the team are based in Ballinasloe. It is not the role of this Court to interfere with the operational requirements determined by an employer.

The Court accepts that the worker’s personal circumstances have changed since 2016, which has impacted upon her personal preferences about work location. However, in the view of the Court the worker was fully aware when accepting the Senior Occupational Therapist as part of the Rehabilitation and Recovery Team that the role was based in Ballinasloe. Having regard to that fact, it is clear to the Court that worker’s base location is in Ballinasloe. Having regard to the above, the Court recommends thought the worker accept that her work location for the purposes of her role as a Senior Occupational Therapist is based in Ballinasloe.

The Court notes that the worker currently attends Ballinasloe one day a week for team meetings, and that the worker is not required to attend work in Ballinasloe every day. The Court was told that it is a matter for the Rehabilitation and Recovery Team to organise its own work and that practical day to day activities undertaken by the team are a matter decided by the team. As a Senior Occupational Therapist, the worker is a member of that team.

The Court recommends that the worker engages with her colleagues to determine when her attendance is required in Ballinasloe having regard to the ongoing requirements of her role. In that regard, the Court recommends that the employer where possible takes a pragmatic approach to facilitate flexible working arrangements for the worker having regard to the requirements of her role.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
29 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.