LCR22286

1. Appeal of Adjudication Officer Decision No. ADJ-00021761.

BACKGROUND:

2. WORKER’S ARGUMENTS:

1. The within claim concerns the Worker’s individual circumstances only and does not have collective implications.
2. The Worker has been on the panel of Seasonal Drivers for some 23 years and has, therefore, accrued the right to remain on the panel.
3. The Worker submits that Decision No. 147735/ft/14, dated 10 December 2015, continues to apply to him and supports his claim. In that Decision, the Adjudication Officer held:
“All future driving positions will be filled from the above list of claimants in order of
seniority”.


COMPANY'S ARGUMENTS:

1. The Council submits that the within claim was not appropriately brought under section 13 of the Industrial Relations Act 1969 as it has collective implications.
2. The established practice in the Council is that a person who is on a seasonal panel must take up an offer of seasonal employment each year when the offer is made in order to maintain their place on the panel; if they fail to do so, their name is removed from the panel and they are not be considered for any further positions connected to that panel going forward.
3. In the Worker’s case, the Council acted in accordance with established and agreed practice in relation to the operations of the Seasonal Drivers Panel.
4. The Worker has been treated consistently with other employees in this regard and was fully informed in relation to the consequences of accepting/refusing offers related to the Driver panel.




DECISION :

This is an appeal by Mr Charlie Farrelly (‘the Worker’) of a Recommendation of an Adjudication Officer (ADJ-00021761, dated 5 December 2019) under section 13 of the Industrial Relations Act 1969. The Adjudication Officer declined jurisdiction at first instance as it was her view that both Parties to the dispute had agreed that the matter had collective implications.

The Worker’s Notice of Appeal was received on 13 January 2020. The Court heard the appeal in a virtual sitting on 5 June 2020.

The Worker commenced employment with the Council as a temporary General Operative in 1998 and was subsequently employed as a Seasonal Driver. In 2015, the Worker was awarded a contract of indefinite duration in that capacity on the back of a successful claim (FTD154) under the Protection of Employees (Fixed-Term Work) Act 2003 (‘the 2003 Act’). The Worker was appointed a permanent General Operative in November 2017 following cessation of his period of seasonal engagement as a driver that year. He was invited to resume as a Seasonal Driver at the commencement of the Council’s Annual Roads Programme in 2018 but declined to do so.

The within dispute relates to the consequences of the Worker’s decision to accept the offer of employment as a permanent General Operative in November 2017 and his subsequent decision to decline an invitation to resume employment as a Seasonal Driver. The Council’s position is that the Worker had been advised in November 2017 that the effect of such a refusal would be that the Worker would lose his position on the Seasonal Drivers’ Panel, in accordance with established practice and as agreed with SIPTU. The Council submits that a concession of the Worker’s claim to continued seniority on the Seasonal Drivers’ Panel would undermine the collectively agreed arrangements currently in place.

The Worker denies that the within dispute has collective consequences and in doing so relies on the aforementioned Labour Court Determination (FTD154) under the 2003 Act which he submits was not appealed at the time by the Council. He further relies on an email of 16 November 2017 from the Council in which he had been advised that he was, at that time, placed second on the Drivers’ Panel and would remain on the panel until such time as the Council sought to engage Permanent Seasonal Drivers for the delivery of the Annual Roads Programme in 2018. In her submission to the Court, the Worker’s Solicitor seeks “to assert [her] client’s contractual rights and constitutional rights to have [her] client’s name fully restored to the driver’s (sic) panel” on the basis that the Council – she submits – “are estopped at law from removing his name from the Panel”.

Decision

The relevant paragraphs of the email of 16 November 2017 from the Council to the Worker state:

• “You are currently placed 2^nd on the Drivers panel and would remain on that panel at least until Kerry County council seeks to engage Permanent Seasonal Drivers for the delivery of the annual Roads Programme in 2018.

  In the event that you are then contacted regarding engagement for the 2018 season and accept same, you will be required to resign your permanent position as General Operative – Kenmare.

  In the event that you decide at that time to remain in permanent employment as General Operative -Kenmare and refuse engagement as Driver, your name will then be removed from the Drivers panel.”

The Court makes no comment in relation to whether or not the within dispute has collective implications - as submitted by the Council’s Representative -in circumstances where the Trade Union was not present to make submissions on this point.

The Court so recommends.

	Signed on behalf of the Labour Court
	Alan Haugh
NJ	______________________
4 November 2020	Deputy Chairman