SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
KERRY CO. COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY)
- AND -
(REPRESENTED BY ENRIGHT SOLICITORS)
1.Appeal of Adjudication Officer Decision No. ADJ-00021761.
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”.
The relevant paragraphs of the email of 16 November 2017 from the Council to the Worker state:
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.
Enquiries concerning this Decision should be addressed to Noel Jordan, Court Secretary.