ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008384
National Retail Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 09/01/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
The complainant is a line manager with a large retail company which has stores nationwide. Employment commenced in August 2008 and the contract is for a flexible 45-hour working week with a gross annual salary of €33,700.00 per annum. The issues that are the subject of the complaint and dispute arise from a decision by the respondent to transfer the complainant from the store where she had worked for 7 years to another store.
Summary of Complainant’s Case:
Two days before commencing holidays on 28 February 2017 the complainant was informed by her store manager that she was being transferred to another store when she returned from holidays.
The store in question is about an hour’s drive from the complainant’s home.
The complainant was extremely upset as she felt that it was unfair to select her to move. The complainant had another meeting with the store manager but the decision remained unchanged.
On 10 March 2017, whilst still on annual leave, the complainant met with the store manager again and was given 3 options:
(i) Transfer to the new location
(ii) Transfer to another store within the same region (2 locations mentioned)
(iii) Step down to become a general assistant in the store closest to her home on a 35 hour contract
The store manager also stated that if the complainant wished to progress her career it would be best to transfer. The deadline for a decision was extended to 19 March.
The complainant took up the position as per option (iii). A meeting with the area manager took place in the complainant’s old store on 31 March at which it was said that there were options as line manager available in other stores in the region and that the respondent wished the complainant to remain a line manager. The complainant pointed out that some of the options now mentioned were more than an hour’s drive from her home. The complainant continued to work as per option (iii).
The complainant referred her complaint / dispute to the WRC on 26 April 2017.
Summary of Respondent’s Case:
The complainant failed to exhaust the internal grievance procedure prior to referring the issues to the WRC and the respondent wishes to resolve the matter internally.
The complainant’s contract contains a mobility clause. It is common practice to move employees to different stores and the respondent is perfectly within its rights to do so.
The complainant is currently working as a customer assistant but remains on the salary of a line manager. The respondent has offered several options to the complainant to facilitate her remaining as a line manager. The respondent believes this to be the best option for both parties.
The complainant’s contract has not changed in any regard and therefore the complaint under the Terms of Employment (Information) Act, 1994, must fail.
Findings and Conclusions:
The respondent has argued that the complainant had not raised a formal grievance with management prior to referring the matter to the WRC. Whilst it is true that the complainant had not put her grievance in writing or otherwise formally stated that she was invoking the company’s Grievance Procedure it is clear that, at that stage, the complainant had expressed her concerns in respect of the transfer and had met with senior managers on several occasions regarding these concerns. I accept the point that the respondent felt that the procedures had not been exhausted and note that meetings between the parties have continued since the referral.
I note that following the meeting of 31 March 2017 the area manager wrote to the complainant setting out the respondent’s position which was as follows:
The complainant’s contract provides for the type of transfer that is being proposed.
The complainant therefore is required to move as and when the business decides.
The options of moving as a line manager have been increased to include a further 4 locations within the region.
The situation whereby the complainant is temporarily working as a Customer Assistant in another store and being paid as a line manager would cease on 17 April 2017.
Following on from this the complainant wrote to the area manager on 19 April 2017 and in that letter stated:
I am writing as requested per phone call on Saturday 15th April. I (name) am accepting the position of G.A. at (store location) on 27th March 2017, 35 hours per week as discussed with (name of store manager).
Another series of contacts and meetings between the parties took place. The respondent for some reason seemed reluctant to accept the complainant’s letter re stepping down and still asked that she consider the various line manager options. The complainant reiterated her objections to these options. Around this time the store manager in the location that the complainant was now working requested that she sign a new permanent contract as a customer assistant. The complainant refused on the basis that she did not wish to sign a permanent contract for that role. The manager told her she would have to go home and the complainant left the store. The complainant subsequently went on sick leave but the respondent did not pay her sick-pay on the basis that such payment was contractually at the respondent’s discretion. This situation has continued with sporadic contact between the parties, the latest meeting occurring just a few days prior to the hearing.
I note that the copy of the complainant’s contract supplied to the hearing contains the following clause:
As part of your ongoing development you may be required to move to another department within the store or to another store.
I further note that the copy supplied to the hearing does not have the complainant’s signature on it. The complainant did not dispute that this was her contract. The issue at the heart of the dispute would appear to be in relation to the distance that the complainant would be required to travel to the stores mentioned as options to her by her store manager. The complainant in her meetings with management referred to her belief that any transfer should not involve more than one hour’s travel time from her home. The contract presented does not have any limit as to distance in the mobility clause but a degree of reasonableness in this regard would be expected. It would be unlikely, however, that any company would specify an employee’s home as a base as where a person resides is a matter of personal choice. If such a custom and practice exists it might refer to a person not being required to transfer more than one hour’s travel from their present work location. I note that all the options now on the table are in the same region.
What is clear is that this dispute has been allowed remain unresolved for almost a year. I do not intend to apportion blame for this but rather recommend a way forward to the parties. With regard to the complaint under the Terms of Employment (Information) Act, the complainant in her complaint form stated that she had not been informed of a change in the terms of her contract. Section 5 of the Act states:
(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3,4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –
(a) 1 month after the change takes effect, or
(b) Where the change is consequent on the employee being required to work outside the state for a period of more than 1 month, the time of the employee’s departure.
The complainant did not specify what change took place to her contract that she was not informed of. At the hearing the complainant did not dispute the mobility clause in her contract and the respondent had not changed any other part of her contract at the time of lodging the complaint. The complainant wrote to the company stating that she accepted the position of customer assistant but the dispute that arose was in relation to its permanency. I do not find therefore that the complaint has outlined is a valid complaint under the Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint No. CA-00011106-01:
This is a complaint under the Terms of Employment (Information) Act, 1994. For the reasons outlined above I do not find that there was a breach of Section 5 of the Act and I find therefore that this complaint is not well founded.
Complaint No. CA-00011106-02:
This is a dispute under the Industrial Relations Act, 1969. I recommend that the complainant should accept and sign the contract in relation to the position of customer assistant (35 hours per week) in the store as stated in her letter of 19 April 2017. I further recommend that the respondent should provide a covering letter stating that the company accept that the complainant may, in the future, wish to upgrade her position to that of line manager and that in the event of being so notified by the complainant the company will advise her of vacancies for that grade within the region and process any application giving due regard to the complainant’s previous positive contribution and experience as line manager.
Dated: 20th April 2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly