FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : A LOCAL AUTHORITY (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no ADJ-00000793.
BACKGROUND:
2. This case concerns the redeployment of the Worker from his position as Fire Fighter into an administrative role.
- The Union said that the Worker’s contract of employment with the Respondent is as a Fire Fighter and that neither his contract nor the applicable disciplinary policy provides for redeployment to any other role.
The Employer said that it has the right to reassign an employee to another area of employment and has provided suitable alternative employment to the Worker and has provided him with all necessary training and support in his current assignment.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 8 July 2016 the Adjudication Officer issued the following Recommendation:-
- 1.That a mutually agreed third party should conduct in depth interviews with all Fire Fighters as to their views and concerns (if any) of working with the Complainant.
2.That the Complainant continue to be redeployed for the next 12 weeks on the same gross weekly average pay that he would earn as a Fire Fighter, including any allowances or overtime …
3.In the event that an Independent Reviewer finds that there are no substantial Health and Safety risks to the Complainant returning to his Fire Fighter role after the 12 weeks then the Complainant should revert back to his prior role as a Fire Fighter.
The Respondent appealed the Adjudication Officer’s Recommendation to the Labour Court on the 9 August 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
Two Labour Court hearings took place on 1 March 2017 and on the 27 June 2017.
UNION ARGUMENTS:
3. 1. The Worker’s contract of employment is as a Fire Fighter.
2. There is no provision under the terms of his contract of employment for redeployment as a disciplinary measure.
3 At no stage was it formally indicated to the Worker that the outcome of the investigation could result in disciplinary action.
EMPLOYER’S ARGUMENTS:
4. 1. The Employer has the right to reassign an employee to another area of employment.
2. The Worker was redeployed in his own best interests and that of the fire service and general public.
3. The Employer is satisfied that it has provided suitable alternative employment to the Worker and has provided for consistency in terms and conditions of employment.
DECISION:
This is the Respondent’s appeal from a Recommendation of an Adjudication Officer (ADJ-00000793, dates 8 July 2016). The Notice of Appeal was received by the Court on 9 August 2016. The dispute concerns the redeployment of the Worker from his position as Fire Fighter which he has held since 2001 into an administrative role as a consequence of which he has suffered significant loss of earnings.
In March 2014, the Respondent initiated a disciplinary process against the Worker in relation to certain events involving the Worker that had occurred in November 2012 and which had been the subject of an independent investigation during the intervening period. The disciplinary process concluded in November 2015. The outcome was that the Worker was transferred from his position as Fire Fighter to an administrative role. He has been absent on a number of periods of extended sick leave between November 2015 and the date of hearing of the within appeal (27 June 2017).
The Adjudication Officer recommended that an agreed third party should investigate – within a 12-week period from the date of his recommendation - whether there are any health and safety concerns that would mitigate against returning the Worker to his former role as Fire Fighter. He also recommended that the Worker be paid the same gross weekly average pay during that 12-week period that he would earn as a Fire Fighter. If no substantial health and safety concerns were identified by the independent third party, the Worker should be reverted to his original role. Finally, the Adjudication Officer recommended that if health and safety concerns were identified that prevented the Respondent from allowing the Worker to resume work as a Fire Fighter the Worker should be considered for a role in any other Fire Station that he was willing to transfer to or accept the redeployment on a permanent basis and be paid “three years’ loss of earnings” by the Respondent.
The Parties’ Submissions
The Union submits that the Worker should be reinstated to his position as a full-time Fire Fighter. It cites the following grounds in support of its position:
•The Worker’s contract of employment with the Respondent is as a Fire Fighter;•Neither his contract nor the applicable disciplinary policy provides for redeployment to any other role;
•The contract provides that the status quo will be maintained while a grievance is being processed;
•The reports relied on in the course of the disciplinary process were flawed.
The Respondent does not accept that it, as an employer, does not have the right to reassign an employee to another area of employment. It submits that its decision to reassign the Worker herein was made in the Worker’s own best interests, in the interests of the Fire Service and in those of the public. It further submits that it has provided suitable alternative employment to the Worker and it has provided him with all necessary training and support in his current assignment.
Recommendation
The Court recommends that the Worker be retained in his redeployed administrative role and that he receive compensation of three years’ loss of earnings. The loss of earnings should be calculated by reference to the difference between the Worker’s earnings during his final full year as a Fire Fighter and his earnings during the first full year in the redeployed role.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
3rd July, 2017.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.