ADJUDICATION OFFICER RECOMMENDATION
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 - 2012, and/or Part VII of the Pensions Acts 1990 - 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 25 of the Equal Status Act, 2000, and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant is employed as a Seasonal Driver, General Operative on a 39 hour week. The Complainant was employed by the Local Authority as Temporary General Operative in 1998 and subsequently as Permanent Seasonal Driver before his appointment as Permanent General Operative in November 2017.
The Complainant states it is his contention that he should remain on the driver’s panel for consideration for any full-time driver jobs that may occur in the future, as is the custom and practice for any other outdoor or road panels.
Summary of Complainant’s Case:
The Complainant has been employed by the Local Authority as a temporary/seasonal driver since 1997 to at present 21 years in capacity. The Complainant is No 2 on a Driver’s panel which remains in place. Although the HR Department, Local Authority had tried to remove the Complainant off this panel it is in the Complainant’s view and the view of their Union that they should remain on the panel at least until the case appeal is concluded as was conveyed to the HR Department on 26 March 2018 which the Complainant received no reply.
The Complainant took up a full-time position in a location as a General Operative which became available at the end of their seasonal work in a Yard on 28 November 2017. The HR Department contacted the Complainant on 16 November 2017 regarding an offer of employment in a location and the Local Authority’s view on the Complainant holding their position on the panel. The Complainant commenced work as a General Operative on 28 November 2018. The Complainant took up this offer of employment out of desperation to keep up mortgage repayments on their home.
The Complainant stated that after the Christmas holiday period he contacted the HR Department by email and informed them that he was not in agreement regarding their proposals to remove him from the panel, should the Complainant turn down work in the Yard during the summer of 2018. The HR Department replied to the Complainant and their Union on 8 January 2018 saying they were giving consideration to the matters raised. The Complainant stated no further contact was made with him until 26 March 2018 a day before he was due to return to the Yard for the Season.
The Complainant along with SIPTU replied to the HR Department again on 26 March outlining the fact that his position was totally different to any other driver who opted to take up permanent employment elsewhere in the past. As the Yard was experiencing difficulties this season carrying out the Programme due to the lack of experienced drivers. The Complainant contacted the HR Department on 31 May 2018 with a proposal about redeployment to the Yard for the duration of the remainder of the Programme, but the HR Department did not reply. Eighteen months later the Local Authority had re deployed a non-driver on numerous occasions from another department to the Yard since the Complainant’s correspondence on 31 May 2018 to help with 2018 and 2019 Programme.
The Complainant stated it is his contention that he should should remain on the panel for consideration for any full-time driver jobs that may occur in the future, as is the custom and practice for any other outdoor or road panels.
The Complainant stated the last 3 drivers who were employed on these terms left the Yard due to the fact they either got Foreman position or a ‘promotional’ driving job in the area. In the recently published Yard review which is currently the subject of a Third Party mediation (WRC Conciliation Service), Local Authority are strongly advocating that all full time drivers be re-deployed to the locations when there is no work in the Yard during the Winter.
The Complainant stated he found himself on the temporary panels previously but the permanent panel should be separate from the temporary panel. The Complainant’s representative acknowledged that there is collective consequence of today’s claim.
The Local Authority read their submission. They said it is collective and then follow agreed SIPTU agreement reference the Complainant’s appointment.
The Local Authority representative stated that the panel was treated uniquely based on the SIPTU agreement and the Complainant was treated the same as all others in line with that SIPTU agreement. The offer was put in writing to him subject to these terms.
The Complainant’s representative acknowledged there was an agreement in place with SIPTU reference this.
Summary of Respondent’s Case:
The Complainant was first employed by the Local Authority as Temporary General Operative in 1998 and subsequently as Permanent Seasonal Driver before his appointment as Permanent General Operative in November 2017.
Following agreement reached with the SIPTU Trade Union, persons placed on a panel for Drivers as formed in 2000 were deemed as permanent seasonal employees and a previous process of renewal of panels every two years was discontinued in that particular instance. This agreement was reached having regard to the particular driving qualifications held by those placed on the panel and their having provided satisfactory service in periods of engagement up to that point. This arrangement was unique at the time, in that it provided those employees on that panel with an entitlement to be recalled on an annual basis or offered permanent wholetime employment without further interview or assessment.
The nature of Complainant’s employment as Permanent Seasonal Driver provided for periods of seasonal engagement having regard to the Local Authority’s Annual Roadworks Programme each year.
The Respondent stated the Complainant and a number of other employee’s employment status as Permanent Seasonal Driver was previously the subject of a Labour Court case, resulting in Labour Court Determination wherein the employee status and the particular conditions pertaining to the Panel were detailed. In accordance with the determination as issued, Complainant was awarded a Contract of Indefinite Duration as Permanent Seasonal Driver.
The Complainant’s current claim is in relation to his status, or lack thereof, on the panel.
The Respondents arrangements attached to the panel have always provided that persons on the panel were ranked in order of seniority for all vacancies howsoever arising. It was an established position that in order to maintain their placing on the panel, persons contacted regarding annual seasonal engagement were required to take up same and that in the event they failed to do so, their name would be removed from the panel and they would not be considered for any further positions (seasonal or wholetime) going forward. Labour Court Determination underpins that all employment opportunities arising in relation to that panel were/are permanent in nature be they for a period of seasonal engagement or to fill wholetime positions arising.
Certain circumstances pertaining to persons on the panel who held other separate employments with the Local Authority had allowed them to retain their permanent employment and be engaged on a temporary assignment for seasonal works as Driver each year. On occasion those employees were, by agreement between the Local Authority and SIPTU, allowed to decline shorter periods of seasonal engagement but still retain their placing on the Drivers panel for future offers.
Upon receipt of representations from SIPTU in 2015 regarding these practices it was agreed that notwithstanding traditional arrangements referred to above, it was not satisfactory that persons could refuse periods of seasonal engagement and retain their placing on the panel, thereby potentially leaving others on the panel who were less senior at a disadvantage into the future regarding possible permanent wholetime employment opportunities.
The parties therefore agreed to eliminate that practice and a number of persons holding other employment with the Local Authority were subsequently informed that when they were next offered any period of seasonal engagement as Driver, they would be required to accept same or forfeit their place on the panel.
Thereafter a number of persons who were contacted in relation to seasonal engagement as Driver informed the Local Authority that they were not accepting same. Those persons were duly informed that their names were therefore removed from the panel and that they would no longer be considered for employment as Driver.
It is important to note that this change of practice was initially sought by SIPTU and agreed to by Management in the interests of ensuring fairness and consistency for all persons on the panel.
The Complainant’s claim is based on his treatment in relation to the panel, the unique circumstances of which are set out above, upon his own permanent appointment to the position of General Operative with Local Authority.
In mid-2016 Local Authority carried out a recruitment process for General Operatives across all Municipal Districts. This competition was not publicly advertised but was open to all existing Local Authority employees and a number of persons who had previously been employed on a seasonal basis and on Government employment schemes during and immediately prior to the Moratorium on recruitment in the Public Sector. The arrangements around the competition were agreed in advance with SIPTU who hold sole negotiating rights for employees of that grade with Local Authority.
The Complainant was an applicant for the area and following interview was deemed successful and placed on individual panels formed. He was subsequently offered temporary employment as General Operative having regard to vacancies that existed across various works areas.
In accordance with the traditional approach consistent across the local government sector, with the notable exception of the Drivers panel for the Local Authority and the unique circumstances pertaining to same as already outlined, the Complainant was entitled to refuse these offers of temporary employment and retain his place on the General Operative panel(s) for any permanent offers which might arise.
The Complainant duly refused offers of temporary employment for each area.
During this time the Complainant’s status as Permanent Seasonal Driver remained unchanged and having been engaged in that capacity at the beginning of the 2016 season he continued in that role for both 2016 and 2017.
In November 2017, when approaching the end of his period of engagement as Permanent Seasonal Driver, the Complainant was offered permanent employment as General Operative with the area having regard to his placing on the panel and permanent vacancies to be filled. Upon receipt of the offer he requested clarification on a number of matters, amongst which was the position regarding the panel.
The Respondent stated in emailed correspondence dated 16 November 2017 the Complainant was informed that should he accept the offer of permanent employment as General Operative upon cessation of his 2017 period of seasonal engagement as Driver he would remain on the panel until the Local Authority sought to engage Permanent Seasonal Drivers for the delivery of the Annual Programme in 2018, but that should he be contacted regarding engagement for that purpose and decided to accept same, he would be required to resign his permanent position as General Operative in accordance with the approach previously agreed with his Union.
The Respondent stated the Complainant was further informed that in the event that he decided at that time to remain in permanent employment as General Operative and refuse engagement as Driver, his name would then be removed from the panel in accordance with the established practice as previously agreed with SIPTU.
The Complainant accepted permanent employment as General Operative and was appointed to that position on 28 November 2017, having been allowed to complete his period of seasonal engagement as Driver and avail of pre-planned Annual Leave.
In March 2018, having regard to his established placing on the panel and in-keeping with the undertaking given in correspondence of 16 November 2017, the Complainant was contacted in the normal manner and advised of the opportunity for seasonal engagement in that capacity. By email dated 28 March 2018 the Complainant confirmed that he would not be availing of the period of seasonal engagement as Driver, further advising that the matter was the subject of a referral to the Workplace Relations Commission. In April 2018, having regard to his position on the panel formed for same in 2016, the Complainant was offered permanent employment as General Operative in a Municipal District and accepted same. His appointment to that position was made effective on 15 May 2018.
It is the Local Authority’s position that this is a collective matter.
The Respondent stated in relation to the panel as originally formed in 2000, the unique circumstances attaching to same and the conditions applied by agreement with SIPTU have led to a consistent approach being adopted in relation to any person’s status on that panel.
Unlike other panels where offers of employment may be part-time, wholetime, temporary or permanent, all offers of employment in relation to the panel are permanent, be they for periods of seasonal engagement or wholetime.
The Respondent stated they have been consistent in its approach and cannot accept that there has been any unfair treatment of Complainant in this matter.
The Respondent respectfully requests the Adjudication Officer to find in its favour.
Findings and Conclusions:
Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.
13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
(ii) notify the Court of the recommendation.
(b) A rights commissioner shall not investigate a trade dispute—
(i) if the Court has made a recommendation in relation to the dispute, or
(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.
The case was referred to the WRC in 2018 and Local Authority objected at that time as it has collective implication. The Complainant was not made aware of the fact that the Local Authority objected at that time. The Complainant was awaiting date for the case until they heard recently the Local Authority had objected to the WRC hearing. The Complainant re submitted the claim again as he had no update since. The Local Authority objected again today as they said it has collective implications but they agreed to today’s hearing progressing today and being heard by WRC. The case proceeded on that basis.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.
As this matter has been agreed by both parties to have collective implications I do not have jurisdiction to hear this case.
Workplace Relations Commission Adjudication Officer: