SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
DUBLIN CITY COUNCIL
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer's Decision No: ADJ-00002953.
2. This case concerns a claim where the worker is seeking reinstatement to his former location of work and financial compensation.
This matter was referred to an Adjudication Officer for investigation and recommendation. On 2 September 2016 the Adjudication Officer issued the following recommendation:-
Based on the aforesaid findings and conclusions, I recommend the following course of action:
(1) That the Respondent confirms in writing to both the Complainant and his Union that his designated location of work is Area B, subject to the terms of his employment contract, 2011 Collective Agreement and any future agreements, within 42 days of the date herewith.
(2) That within 42 days of the date hereof, the appropriate representative of the Respondent meets with the Complainant to assess his changing, office and parking facility needs in Area B and strives to make satisfactory arrangements to meet same. Failing agreement, this matter may be remitted back to the WRC by either Party as a new dispute with particular reference to these recommendations.
(3) That once such satisfactory arrangements are in place, the Complainant reports directly to Area B and also collects his van from Area B at his agreed/contracted starting time of work. The Complainant must also collect any remaining belongings from Area A including the office.
(4) That no further reviews of the Complainant's position be conducted unless the Warden needs of Areas A or B change. In the event of a suitable Warden position becoming available in Area A, that the Complainant will be offered first refusal without any loss in terms and conditions and if taken up, his existing position in Area B should filled in accordance with applicable recruitment procedures.
(5) That any further reassignments of the Complainant are conducted in full consultation with the Complainant and/or his Union including obtaining and considering his position in relation to same.
(6) That the Respondent pay the Complainant €3500 net (comprising of €500 for each six month period or part thereof after lawful deductions) in compensation within 42 days of the date hereof.
(7) That the Respondent considers putting in place clear written procedures for dealing with the temporary reassignment of Wardens between its various areas in any future collective agreements.
(8) That the status quo between the parties be maintained including the current dual reporting arrangements in the event of an appeal to the Labour Court by either Party, pending its finalisation.
The Employer appealed the Adjudication Officer's Decision to the Labour Court on 28 September 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 8 December 2016.
3. 1. The worker had been moved on a temporary assignment for a period of 6 months with a commitment to a review, this review never materialised in any meaningful manner.
2. The proposed 6 month temporary assignment has lasted over 3 years with promised reviews transpiring to be nothing but token gestures.
3. The worker’s temporary reassignment has been extended without engagement or consultation.
4. 1. It is a standard condition in all employee contracts that they can be assigned to different work locations.
2. There is no provision within those contracts for the payment of any such compensation for any such transfers.
3.The Council does not accept that theworker has any grounds to have his reassignment treated differently than that of any of his work colleagues across the Council.
This matter is an appeal by the Council of a decision of an Adjudication Officer. There was no appeal by the Trade Union of that decision.
The Court has considered in detail the written and oral submissions of the parties.
Position of the Council
The Council, in its appeal, has clarified that it is prepared to accept much of the decision of the Adjudication Officer but does not accept those elements of the decision of the Adjudication Officer decision which it believes impinge on matters which are the subject of collective agreements or otherwise have impact or potential impact on issues related to terms and conditions of employment generally. The Council has a long established practice of engaging with Trade Unions, including the Trade Union involved in the within case, to agree terms and conditions of employment on a collective basis.
The contract of employment of the claimant in this case, together with those of workers generally in the Council, makes provision for re-assignment. Moreover the arrangements for re-assignment are addressed in a 1997 agreement between the parties and a 2011 agreement between the parties.
The Adjudication Officer, in her decision, provided, inter alia, for (a) specific consultation arrangements to apply to this worker whenever the issue of re-assignment arises in the future, (b) ‘first refusal’ rights to be afforded to this worker in the event of an opportunity for re-assignment to Area A arising in the future, and (c) that the Respondent should pay to the worker the sum of €500 in respect of every six month period (or part thereof) during which the worker was assigned to Area B prior to the hearing of the Adjudication Officer.
The Council contends that the institution of special consultation arrangements for one worker in an environment where standard and recognised arrangements are in place for re-assignment of workers has the potential to impact on the Council’s capacity to operate effectively. The Council contends that existing arrangements are collectively agreed and operate in a manner reflective of the needs of the Council.
The Council contends that assignment of ‘first refusal’ rights to the claimant in respect of opportunities which may arise in the Council in the future will have an impact on other workers who have expectations based on their seniority deriving from collectively agreed arrangements (including those laid down in the 1997 agreement) for the allocation of re-assignments.
The Council contended to the Court that the payment of compensation in the manner recommended by the Adjudication Officer had the potential to create an expectation among all staff who might find themselves re-assigned in accordance with their contract into the future. Any such development would directly impact on the operation of agreed and established arrangements for the re-assignment of staff of the Council.
Position of the Trade Union.
The Trade Union contended that the impugned elements of the Adjudication Officer decision should apply in the case of the worker concerned.
The Trade Union, while recognising that in general the Council may re-assign staff, contended that the position of the worker in this case was unique for stated reasons and that special arrangements for consultation with him would be fair and reasonable into the future.
The Trade Union, while recognising that special treatment in the form of ‘first refusal’ rights would be contrary to the norm, contended that the claimant’s position was unique in light of ‘numerous affronts on him by the management’. In those circumstances the Trade Union contended that the claimant should be given ‘first refusal’ rights in relation to a potential future re-assignment as recommended by the Adjudication Officer.
The Trade Union contended that adverse treatment had been experienced by the worker to the degree that he felt victimised, unfairly treated, undervalued and requiring to take medication and seek counselling,. The Trade Union contended that the Council had failed in its duties under the Safety Health and Welfare at Work Act, 2005 and as a consequence significant compensation is appropriate.
Discussion and conclusions.
The Court is aware that the role of an Adjudication Officer in Industrial Relations matters is confined to disputes which do not involve the terms and conditions of employment of a body of workers.
The Court must therefore take particular cognisance of contentions that decisions made by an Adjudication Officer have the potential to impact more widely across workers in the employment and whose terms and conditions of employment are normally established by collective agreements resulting from bargaining between the relevant Trade Union and the employer. The Court must also pay particular attention to contentions that matters decided by an Adjudication Officer can, if implemented, impact on the operation of existing arrangements which have been established by collective agreement.
In the within case the Court accepts that the institution of special arrangements for the claimant which are different to those normally applying as a result of collective agreement is not sustainable.
The Court recommends that
•the decision of the Adjudication Officer should be accepted at points (1), (2), (3), (7) and (8).
•normal and established arrangements for consultation in the event of future re-assignments should apply,
•‘first refusal’ rights should be assigned to this worker in respect of a potential re-assignment to Area A in the future only where such a ‘first refusal' right does not impact upon or affect the operation of established arrangements for re-assignment as they affect the body of workers.
The Court recognises that this case is of very long standing and that the experience of the worker has been characterised by misunderstandings and confusion; for example as regards access to facilities. In those circumstances and as a gesture of goodwill in the interest of good industrial relations the Council should make an ex-gratia payment of €1,000 to the claimant in full and finalsettlement of the matter.
The Court so recommends.
Signed on behalf of the Labour Court
14 December 2016______________________
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.