LCR22737

1. Appeal Of Adjudication Officer Decision No(s) ADJ-00039860 CA-00048268

BACKGROUND:

2. This case is an appeal of an Adjudication Officer’s Recommendation by the Union on behalf of the Worker. On 09 January 2023 the Adjudication Officer issued the following Recommendation:-

• “I do not recommend in favour of the Worker in relation to this dispute..”.

The Union appealed the Adjudication Officer’s Recommendation to the Labour Court on 17 February 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on 18 April 2023.

DECISION:

This is an appeal by SIPTU on behalf of a worker with Synergy Security Solutions Limited of an Adjudication Officer’s Recommendation ADJ-00039860. The matter in dispute concerns the proposed transfer of a security officer to another work site following a request by the client where the Worker was based. The Worker submits that he was unfairly required to move location solely because he raised a workplace grievance. He seeks compensation for the potential loss of remuneration arising.

It is accepted that in September 2021 the Worker raised a formal grievance in relation to a complaint of bullying by a work colleague. It is also accepted that the Worker and his colleague agreed to participate in a mediation process which concluded successfully for all parties concerned. At some stage during this process the client became aware of the conflict which existed between the Worker and his colleague and made it known to the Employer that it did not wish to have both workers on site at the same time.

The Employer told the Court as far as it was concerned the matter was an internal dispute which did not affect its contractual obligations with the client, however, it could not influence the client to change its mind. The Employer offered the Worker and his colleague alternative work locations with no loss of earnings, however, both workers wished to remain on the client site. The Employer decided that the more senior of the two workers should be given the option of staying or leaving. It based this approach on what it says is the industry norm in such circumstances. The Worker’s colleague had the longer service, and he opted to stay at the client site. The Worker was offered an alternative work site but turned that offer down. He subsequently resigned for personal reasons.

The Employer submits that there is no question whatsoever that the Worker was penalised or victimised as a result of raising a grievance. Once the mediation process concluded the worker’s grievance was closed. The Employer told the Court that it had no problem with the Worker and would have no hesitation re-employing him if a vacancy arose at another location.

The Worker submits that he was required to move location solely because he raised a workplace grievance, and as a result he suffered a potential loss in remuneration, working hours and flexibility. He asserts that this was an unreasonable and disproportionate sanction for raising a workplace grievance, after he placed his trust in the company procedures to have his workplace issue resolved. Within a month of the mediation process concluding he was informed that he could not work on the same shift as his colleague. When he submitted a proposal to only work on Fridays, Saturdays, and Sundays, this was rejected as he was told that it would result in a financial loss for his colleague. When he objected to the proposed transfer through his union he received no response from the Employer.

The Court has given careful consideration to the oral and written submissions of the parties.

The Court notes that the workplace issue between the Worker and his colleague was promptly addressed by the Employer and satisfactorily resolved via a mediation process.

The subsequent decision to transfer the worker to another work location was clearly a business decision made by the Employer at a client’s behest. The Employer relied on industry norms relating to seniority when transferring workers between locations but could provide no evidence to the Court to support the existence of such norms. It acknowledged that no formal policy existed in relation to this matter. SIPTU, for its part, said that it was not aware of any such practice.

The Court notes that the Worker did not take up the Employer’s offer of work at an alternative location and, after a period of sick leave, he resigned for personal reasons. In such circumstances, the Court cannot find that the Worker incurred any actual loss of earnings arising from the proposal to transfer him to another location.

It is accepted that SIPTU wrote to the Employer in November 2021 contending that the Worker was being penalised for raising a workplace grievance and seeking a response to its concerns. The Employer acknowledged that the Worker was not given the right to appeal the proposed transfer and could provide no evidence that it ever responded to the issues raised by the union.

The Court finds that the decision to transfer the Worker was a business decision. No right of appeal was afforded to the Worker and his attempt to appeal that decision via his union was ignored.

The long-standing position of the Labour Court is to uphold agreed and established dispute resolution procedures. Having successfully addressed matters raised by the Worker in relation to his complaint of bullying, it is unfortunate that the Employer denied the Worker an opportunity to have the subsequent concerns he raised about the proposed transfer process addressed.

Having regard to all of the circumstance of this case the Court recommends that the Worker be awarded a payment of €1,500 in full and final settlement of this matter.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
24 April 2023	Deputy Chairman