Worker

Employer

Anonymised Parties

Enforcement Officer

Enforcement Agency

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 - 00003123

13/09/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021)  the hearing was conducted in recognition of the fact that all hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence as might be provided by the other side.

The specific details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 13th of September 2024.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.

At the completion of the hearing, I did take the time to carefully review all the matters presented to me in the course of  the hearing. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of everything that has been presented to me and instead tend to concentrate on the issues which have guided me to the final recommendations being made. In this regard, I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant attended at this remote hearing and was accompanied by a colleague offering support as appropriate.

The Complainant relied on a submission provided by him on the 3rd of December 2024 which was fully opened in the course of the hearing. The Complainant also relied on the submission already outlined in the Workplace Relations Complaint Form.

I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant made an allegation in his complaint form that he was being bullied and harassed. In his evidence the Complainant pulled away from this allegation and the dispute lay in the area of a perceived failure to provide the Complainant with a  reasonable request concerning his preferred workplace venue.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

 The Respondent entity was represented by a two representatives from their Industrial Relations team. The Respondent provided me with a comprehensive written submission dated the 25th of November 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent rejects that there has been bullying and harassment and believes it has done everything possible to accommodate the Complainant’s request. The Respondent asserts it cannot acquiesce to the demands or requests of any single Employee, even where good reason has been provided.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced over the course of this hearing.

The Complainant is with the Respondent entity since 2000. The Complainant has been working in the midland town of A since 2019. The Complainant explained that he is not at all unhappy there, but he would prefer to be closer to his hometown of B where he can be closer to his family in the event that problems arise in the working day. In his evidence he indicated that there are unique issues with one of his children which require extra parental vigilance.

The Complainant has applied for different positions in towns closer to his home. He has not to date been successful. The one town he was offered - C - was of no material benefit to the Complainant in terms of ending up in a workplace closer to his family home. The Complainant listed up to six towns any one of which he would have liked to be transferred to, and all of which had a Respondent presence.  As I understand it, any transfer application will nominate desired divisions, and each division will contain a number of towns. The town of C has been offered to the Complainant on three separate occasions  in 2020 and 2022 and 2023. Other towns in the division in which C is situate would have been preferable for the Complainant

The Complainant recognises that it is desirous that Employees in this workplace are not assigned into positions too close to their actual home so as to avoid perceptions of conflict and/or bias. In fact, there is a rule against being placed within a 50km radius of your home.  The Complainant makes the case that this rule is not always followed and in any event his proposal is still to be posted in a position at least 30 minutes away from home. His bottom-line request is that he wants to be closer to home should he be needed there at short notice.

The Complainant felt compelled to divulge the personal circumstances that were behind the transfer he was requesting. Having gone to this personal place, the  claimant was very upset and disappointed that despite putting forward his welfare grounds through the Employee Assistance Service that he would up being offered C once and then the identical transfer 2 years later and again nearly three years since his first transfer application and his first engagement with the EAS.

I understand that the town of C is in and around 55 minutes from the Complainant’s home. A little shorter than the distance from A where he is currently posted but not the 30 minute distance he is looking for.

The Complainant is certain that people behind him in terms of seniority are getting placed into towns that they are specifically requesting. He also has formed the view that the rule which disallows personnel work too close to their actual home is as honoured as much in in the breach as in the implementation. However, the Complainant was not able to cite more than one or two examples - the individual facts of which were not known or knowable.

The Respondent is very much of the view that there is no automatic entitlement to be posted to a town or region of preference. To succumb to this arrangement would lead to a break down in discipline. The Respondent operation requirements are the sole drive behind where people are placed. The Respondent does not feel bound to accommodate personal preferences given the importance of its own operational requirements

The Respondent believes it has treated the Complainant very fairly insofar as he has been offered three to four transfers which he himself has chosen to reject.

Some time was spent considering the Dispute Resolution Procedures which operate in this workplace and which this Complainant did trigger. This was a three-stage process, and all three stages found against the Complainant. I am satisfied that the Complainant has exhausted all in-house resolution processes.

The Respondent has conceded that on two occasions it has knowingly breached it’s own 50km rule and these were justified as being in the gravest of circumstances. It was not appropriate to further explore this matter as issues of privacy arose. The Respondent foes not accept that the rule is being continuously breached as it is a practical rule which is grounded in operational effectiveness. The Respondent accepts that some of the Complainant’s frustration stems from a lack of transparency around some posts.

The fact that the Complainant holds a relatively senior role also mitigates against the number of vacancies that can come open to accommodate him. Also, when he is eventually transferred he has to be replaced. There are a lot of moving parts. On the day of the hearing before me I was advised that there were up 49 live applications at the Complainant’s level. The Respondent also pointed out that of that 49 applications, any number of them might have compelling reasons for being accommodated. The Employer has to be wary of allowing every difference in the home life of its staff having to be accommodated

I accept that the Complainant feels he has been overlooked time and again for a placement that might better suit his family life. There is merit in his sense of grievance. The bewilderment is compounded by the fact that the Complainant is clearly a team player who is respected and has earned his promotions. More than once the Complainant stated that he felt humiliated at the number of times he felt overlooked. To be fair to the Complainant, he knows that I (as Adjudicator herein) am limited in what I can do in terms of interfering with the in-house processes which seem to be genuinely grounded in reason and operational needs.

The Respondent has agreed that it will look again at the application for a transfer and consider the Complainant for any position in a town or district which they know would be more acceptable to the Complainant.