LCR22746

1. Appeal Of Adjudication Officer Decision No(s) ADJ-00038868 CA-00042208-002

BACKGROUND:

2. This is an appeal by a Worker of an Adjudication Officer’s decision (ADJ-000038868, dated 13 October 2022) made under Section 13(9) of the Industrial Relations Act 1969 (‘the Act’). A Notice of Appeal was received by the Court on 21 November 2022. The Court heard the appeal in Wexford on 25 April 2023.

DECISION:

The Worker was employed as a Clerical Officer from 16 November 2020 until 26 January 2021 when her employment was terminated. She submits that she was not afforded fair procedures or natural justice when dismissed from her employment.

The Worker applied for and was successful in securing a role as a Clerical Officer based on the Belmont Road, Ferrybank, Waterford. Her contract of employment stated as follows “You will be employed initially in the South Region. Your initial assignment will be to Hillsfield Community Building, Belmont Road, Ferrybank, Waterford. You may be required to work in any service within the vicinity as the need arises”. Prior to starting that role she was notified that she would be assigned to work in offices on the Cork Road, Waterford, on a temporary basis.

The Worker told the Court that she initially agreed to work at the Cork Road offices for a week or two, but informed her employer that it was not feasible to continue commuting to that location as the extra two hours of travelling time each day would have an adverse effect on her work-life balance and health. The Worker submits that despite raising these objections, the temporary assignment continued. She would never have applied for a role based at the Cork Road offices. She felt misled and exploited.

The Employer told the Court that due to circumstances outside of management’s control the Worker was required to report to the Cork Road offices to cover a critical Front Desk post. The Worker was advised that it was a temporary measure. The distance between the two locations is 4km. The Worker raised the matter of her assignment on a number of occasions. She was advised that it was a temporary assignment until that post was filled. She was also advised that management reserve the right to assign staff to locations as service needs require.

At a meeting with the Worker and her union official on 11 January 2021 the Worker indicated her intention to resign from her post.

At a meeting on 18 January the Worker clarified that she was not resigning her position but was only willing to work in the Ferrybank office, not at the Cork Road offices. She was reminded that she was on probation and advised that her continued refusal to follow a reasonable management request could result in the termination of her employment. The Worker was informed that all correspondence would be reviewed, and that consideration would be given to the disciplinary process.

At a follow-up meeting held on 20 January 2021 the Worker confirmed that she would not work from the Cork Road office. In response the Employer informed her that had it no option but to terminate her employment for her failure to follow a reasonable management instruction. She was advised of the right to appeal that decision within 7 days. The Worker did not exercise her right to appeal that decision.

The Court has given careful consideration to the oral and written submissions made by both parties.

In this case, the Worker’s contract of employment clearly states that she will be employed in the South Region and may be required to work in any service within the vicinity as the need arises. In such circumstances, the Court finds that the Worker refused to follow a reasonable instruction by her employer.

The Court notes that the Worker was advised that her continued refusal to follow a reasonable management request could result in the termination of her employment, and that consideration would be given to a disciplinary process. While the Worker was clearly aware that her employment may be at risk for refusing to carry out a management instruction, the Employer accepts that the Worker was not given any advance notice that the meeting held on 20 January formed part of a disciplinary process that could result in the termination of her employment.

This Court has consistently held that an employer is not relieved of the obligation to act fairly where a worker, including a worker who is on probation, is at risk of the loss of his or her job.

The Court notes that the Worker did not avail of the right to appeal the decision to terminate her employment. Notwithstanding that fact and having regard to all of the circumstances of this case the Court is not satisfied that the Worker was afforded fair process by the Employer in the termination of her employment. Therefore, the Court recommends that the Employer pay the Worker compensation in the amount of €2,000 in full and final settlement of the claim before the Court.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
4 May 2023	______________________
CO'R	Deputy Chairman