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FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WATERFORD CITY COUNCIL
- AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation r-059078-ir-07/JOC
BACKGROUND:
2. The Claimant, a General Operative in the Road Department, has 22 years' experience working with the Waterford City Council. In 2003 the Council advertised for Gangers by way of confined interview. The Claimant was placed 4th on a panel of 6 which was used to fill permanent and temporary vacancies. When his turn came around he was offered the position of acting-up Supervisor in the Open Spaces team. Due to the job conditions attached to the role the Claimant believed he would have suffered a loss of earnings and he therefore refused the role. The Claimant was removed from the panel and the job was taken up by another General Operative who was not on the panel and was given, it is claimed, a different set of job conditions, thus precipitating the dispute. Thos issue involves a claim by the Worker
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 23rd June, 2008, the Rights Commissioner issued his Recommendation as follows:
On the 2nd July, 2008 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 1st October, 2008.
UNION'S ARGUMENTS:
3. 1. The Worker, a General Operative, was offered the promotion but he refused it on the grounds that he would suffer a financial loss due to the removal of certain allowances and overtime hours.
2. When the same job was later offered to another Worker no such conditions were put in place, in other words, he was given a different set of Terms & Conditions.
3. The Union are seeking compensation for loss of earnings and loss of promotional opportunities which are estimated to be in the order of €3,500.
COMPANY'S ARGUMENTS:
4. 1. The Claimant was offered the role of acting Supervisor but declined it as he would lose out on the benefits he enjoyed in the Roads Department.
2. When all options to fill the vacancy were exhausted another General Operative not on the panel was asked and agreed to act as a Supervisor from 21st May to 29th June 2007.
3. The Worker that did accept the role cannot be used as a comparator for loss of earnings as his earnings for 2007 were well below those of the Claimant.
4. The Claimant was offered and accepted the role of Ganger in the Roads Department effective from 18th August, 2008, as recommended by the Rights Commissioner's Recommendation dated 23rd June, 2008.
DECISION :
Having considered the submissions made by the parties, the Court sees no reason to alter the Recommendation of the Rights Commissioner and, accordingly, upholds it and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
15th October, 2008 ______________________
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.