LCR22785

1. Appeal of Adjudication Officer Decision No ADJ-00038500 CA-00040949-002.

BACKGROUND:

2. The Worker appealed the Adjudication Officer's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.

The Adjudication Officer had issued the following Recommendation which was heard in conjunction with 2 other appeals - CA-00044319-003 and CA-00044352-002:

"Having regard to the totality of the evidence presented, I find that the Employer acted unreasonably in seeking to transfer the Worker without any meaningful notice or consultation. This action gave rise to much of the subject matter of the subsequent dispute. Nevertheless, I find that the Employer acted reasonably by insisting that the Worker transfer while the grievance was ongoing and removing him from payroll when he refused to attend for work. I further find that the parties attempted to implement the terms of the mediation agreement in good faith. Given that the Worker has now returned to work I find that compensation is the most appropriate form of remedy.

Having regard to the totality of the evidence presented, I recommend that the work be paid the sum of €2,500 in settlement of this dispute."

A Labour Court hearing took place on 20 June 2023.

DECISION:

Recommendation.

There were three Recommendations appealed on this matter on the same facts. The three are subsumed into one Recommendation in this finding.

The background to this dispute is an instruction to the Worker by a Manager to transfer the location of his work. The Worker did not transfer and lodged a grievance under the Employer’s Grievance Procedure. As the Worker did not attend as directed, the Employer withheld his pay.

The Union argues that a requirement to maintain the status quo in the Grievance Procedure, while a complaint is processed, means that the Employer was not entitled to withhold pay. However, the Court notes that the said procedure provides also that the work should continue without interruption while a grievance is processed.

The Court does not consider that the Worker can have an automatic and unrestricted right to expect that he can refuse an instruction, fail to turn up for work and still expect to be paid, based on the fact that the relevant procedure provides for the maintenance of the status quo; a provision that is qualified, in any event, by the need for work to continue without interruption. It seems obvious that the purpose of the relevant provision is to facilitate work continuing while the process is underway.

The Court notes that the Worker was transferred within the terms of his contract of employment and that management exercised a right granted to it by that contract. In that sense, the Court acknowledges that management had a right to decide as they did.

However, even where management has a right to transfer, common sense and good management practice suggest that there is a requirement to take account of the consequences of any transfer for the Worker affected, to recognise any concerns and to consider if there are viable alternatives . This does not fetter the rights of a manager but rather amounts to sound practice and enhances the possibility of harmonious working relationships. The Court is not persuaded that this level of consideration was given to the concerns expressed by the Worker.

While the Worker’s refusal to attend, at the place to which he was instructed to report, exacerbated the friction between the relevant manager and him very quickly and there is no doubt that the Worker made a considerable contribution to the deteriorating situation, the Court feels that it is important to note that there were obligations also on the individual manager, and the Employer more generally, to seek to determine if the Worker’s concerns could be accommodated or, in some way, addressed. The failure by the Employer to do so in any apparent meaningful way was also a contributor to a situation that deteriorated with bewildering rapidity.

The Court recommends that the Employer pay a sum of €1000 to the Worker in recognition of its contribution to a dispute that, ultimately, resulted in considerable financial loss for the Worker.

	Signed on behalf of the Labour Court
	Tom Geraghty
TH	______________________
10 July 2023	Deputy Chairman