ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000793
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00000669-001 | 05/11/2015 |
Date of Adjudication Hearing: 28/06/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant was employed since 2002 as a Firefighter.
The complainant has been redeployed from his contracted position without his consent and in breach of the agreed precedent and agreement that the “status Quo” will remain of a person staying in his role while the grievance procedure is being pursued.
The complainant has been on paid suspension for three years and was only allowed return to work in a totally unrelated administrative capacity and is denied the opportunity to complete his agreed role as a Firefighter and is suffering financially from a drop in income as a result and wishes to resume his normal position immediately.
The Council have no right to redeploy the complainant as a under the Fire Brigade Disciplinary Code 1945 nor as per the Complainants contract of employment.
The Complainant had co-operated with all the investigations to date and has not committed any act warranting a disciplinary action. The investigations and conclusions were biased against the Complainant.
Respondent’s Submission and Presentation:
The Complainant is involved in a protracted disciplinary/grievance procedure with the Council.
The complainant had a previous finding in his favour related to an equality issue overturned by the Labour Court on appeal.
The complainant was alleged to have been involved in serious Health and Safety risk issues with potential risks to the public, the Complainant and his work colleagues which were the subject of intensive investigations.
The Complainant is alleged to have recorded phone calls regarding his work colleagues without their consent or knowledge. This was extensively investigated and there was a conflict of evidence between the parties.
The case regarding the alleged phone recording was not proven but that morale and trust had been compromised between the Complainant and his work colleagues and the consequences of this lack of trust were extremely serious to the working relationship and the safety of the public and fire fighting staff.
Having undertaken a full review of all matters and taking into account the needs of the Complainant, the other Fire Fighters and the need for the operation as a whole to function in a safe manner the Complainant was redeployed to an administrative role.
The other alternative proposed by the investigation process was a “structured intervention programme” and it was concluded that this process would not have the required commitment by all parties at this stage to succeed.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
In writing this decision I am cognisant of the following;
The Complainant and the Respondents respective positions and rights
The potential of an increased risk to the safety of the public and the firefighting team due to any decision I propose to reinstate the Complainant to his role of a Firefighter
The likelihood of any decision having acceptance by both parties to actually implement the decision.
While I understand and accept that this is an industrial relations issue and forum I cannot be oblivious to the information that was presented to me at the Hearing and in the detailed written submissions. The case is not a contract employment law issue solely. Let me take the above three issues in turn.
On the complainant’s position and employment rights I find there is no grounds for his redeployment either legally, per his contract of employment or per industrial relations procedures. However, the Respondent has the legal and moral responsibility to ensure the safety of the Complainant, his work colleagues and the public so have a broader onus of responsibility to consider in these circumstances than the pure rights of the Complainant.
It appears that the bond of trust has eroded between the Complainant and his colleagues. In a normal work situation this may not be too much of an issue but in the role of Firefighters this could have high implications of a life and death outcome for the Firefighters and or the Public. This is a heavy consideration to consider in this decision. It has been stated that if my recommendation is to allow the Complainant to return to his role that the other Firefighters at the location will not work with the Complainant. This, the Council argued, would mean any recommendation to that effect could not be implemented. This was not able to be tested in any meaningful and satisfactory way at the Hearings.
With regard to a recommendation that the Complainant return to his normal duties immediately I am of the view that this will not be able to be implemented by the Council for all sorts of reasons, primarily because his work colleagues may not accept it or the Council having concerns for the health and safety of staff and the public in a strained or unsafe work environment if the Complainant returns to his role. However, this reluctance of his colleagues to work with the Complainant if he returns to the Fire Station has to be yet fully tested. And as it is the key reason for not allowing him return to work as a Fire Fighter it needs to be conclusively established and the health and safety reasons for it, if true. Therefore I recommend the following;
That a mutually agreed third party should conduct in depth interviews with all Firefighters as to their views and concerns (if any) of working with the Complainant. These should relate solely to Health and Safety concerns. This review should be conducted and concluded within 8 weeks of today date. At the end of the review the Independent Reviewer should meet all parties to express their findings. It is inconceivable that the Complainant be denied a return to his legally entitled role without knowing, and having the opportunity to respond to, the extent and detail of the concerns allegedly opposing his return.
That the Complainant continue in his redeployed role for the next 12 weeks on the same gross weekly average pay that he would earn as a Firefighter , including any allowances or overtime, that he would have earned on average week in the year prior to his redeployment.
In the event that the Independent Reviewer finds that there are no substantial Health and Safety risks to the Complainant returning to his Firefighter role after the 12 weeks then the Complainant should revert back to his prior role as a Firefighter.
In the event that the Independent Reviewer find that there are potential serious health and safety risks to the Complainant, other Firefighters or the general public as a result of the Complainant returning to his prior role then the Complainant should be considered for a role in any other Fire Station that he is willing to transfer to or accept the redeployment on a permanent basis with three years loss of earnings to be paid to the Complainant for any potential loss of earnings into the future. I am aware this is above normal but it takes into account the Complainants legal rights, his service and time to retirement and I believe is justified, on a totally without prejudice or precedent basis, in this case.
Dated: 8th July 2016