INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
DONEGAL COUNTY COUNCIL
(REPRESENTED BY LGMA)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Ms Tanham
1. Appeal of Rights Commissioner's Recommendation r-141048-ir-13/EOS.
2. This dispute concerns the Worker's claim that the Employer is seeking to change his grade. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 15th May, 2015 the Rights Commissioner issued the following Recommendation:-
- "I do not uphold the complaint [but] I recommend in full and final settlement of this dispute [the Worker] be paid €500 compensation."
On the 25th June, 2015 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 8th October, 2015.
3. 1. The Worker was appointed a permanent Waterworks Caretaker Grade V in 2004.
2.In January 2012 the Employer confirmed in writing that the Worker was a Waterworks Caretaker Grade V.
3.The Worker should be allowed continue in this post.
4. 1.In December 2009 the Worker was appointed Acting Waterworks Inspector pending the permanent filling of the post.
2.When sanction to fill this post was received in 2011, the Worker was required to revert to his substantive post.
3.Consideration of this cost-increasing claim is precluded under the provisions of the Croke Park and Haddington Road Agreements.
The Claimant has been employed by the Respondent since January 2001. He was employed initially on a temporary basis but was made permanent as Waterworks Caretaker Grade V with effect from 1 April 2004 and appointed to Ballyshannon Water Treatment Works. The Claimant reported directly to Mr AB (Waterworks Inspector) and regularly acted up when Mr AB was on leave. Mr AB retired in 2009. It is common case that the Claimant was appointed as Acting Waterworks Inspector in December 2009 pending the permanent filling of the post previously held by Mr AB. The Court notes, however, that a copy of the relevant Manager’s Order was not submitted in evidence of this by either party. The Claimant was paid an acting-up allowance between December 2009 and July 2014 (i.e. up until the conclusion of the Rights Commissioner’s hearing of the complaint herein). The Complaint’s claim is that he should be permanently regraded as a Waterworks Inspector.
The Court received detailed submissions in relation to the historical evolution of a grading structure for Waterworks Caretakers and Waterworks Inspectors in the 1990s which was particular to Donegal and at variance with the grading structure operated in relation to comparable posts elsewhere in the State at the time. The assimilation of the Donegal Scale with national pay and grade scales following the Parallel Benchmarking exercise in 2003 was the subject of a 2004 agreement brokered with the assistance of the Labour Relations Commission. The resulting assimilation process continues to this day. The Claimant’s appointment in April 2004 was at Grade V of the so-called ‘Donegal Scale’. That grade is comparable with Grade III on the national scale. The position held by Mr AB, the Claimant’s line manager, is equivalent to Grade V on the national scale. The Court accepts that the complex inter-relationship between the Donegal and national scales, the similarity in the titles used in the respective grading structures, is the source of much confusion underlying the claim herein.
On 4 August 2011, the Respondent advertised six Waterworks Caretaker (Grade V) posts to be filled on a three-year fixed-term basis. The Court accepts that the posts advertised on that date were at the same grade (‘Waterworks Inspector’) which Mr AB had served at prior to his retirement and in which the Claimant was acting-up from 2009 onwards i.e. the advertised posts were at Grave V of the national scale and not Grade V of the ‘Donegal scale’. The posts were advertised on a fixed-term basis because the Respondent had not been given sanction to make appointments on a permanents basis.
The Claimant made a decision not to apply for any of the advertised Grade V positions.
The Court accepts that genuine confusion could have arisen on the Claimant’s part in relation to the substantive grade which applied to the fixed-term posts advertised in August 2011, having regard to the historical background briefly outlined above. However, having considered the parties’ written and verbal submissions, the Court does not accept that the Claimant has substantiated his claim to be regraded from Grade III to Grade V on the national scale i.e. from Assistant Waterworks Inspector to Waterworks Inspector.
The appeal fails and the Recommendation of the Rights Commissioner is upheld.
The Court so recommends.
Signed on behalf of the Labour Court
20th November, 2015______________________
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.