Labour Court Database __________________________________________________________________________________ File Number: CD8982 Case Number: LCR12303 Section / Act: S20(1) Parties: ELECTRICITY SUPPLY BOARD - and - A WORKER;DONAL MCAULIFFE AND COMPANY, SOLICITORS |
Restoration of the worker's job description.
Recommendation:
5. The Court recommends that this worker process any grievances
via his union and the agreed procedures. It must be recognised
the E.S.B. and the Unions have the right to negotiate agreements
covering the electricians and that all electricians should comply
with those agreements.
The Court does not recommend in favour of the claimant.
Division: CHAIRMAN Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD8982 RECOMMENDATION NO. LCR12303
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: ELECTRICITY SUPPLY BOARD
and
A WORKER
(REPRESENTED BY DONAL McAULIFFE AND COMPANY, SOLICITORS)
SUBJECT:
1. Restoration of the worker's job description.
BACKGROUND:
2. The worker was appointed to the post of technician electrician
in the mains area, Dublin City district on the 1st June, 1978.
His job mainly consisted of assisting his supervisor in
programming, controlling and supervision of activities on the
overhead networks and assisting in the control of equipment, tools
and materials and the operating and monitoring of systems
associated with the work of the mains area. His letter of
appointment stated that he would also be required to work under
other supervisors and to carry out work appropriate to the
electricians category. In 1981, following an agreement negotiated
between the Company and the Electrical Trades Union (E.T.U.) a
number of designated electrician positions were created and the
worker was appointed to one of these posts. There was no
significant change in the content of the worker's duties and he
spent approximately 90% of his time working on clerical and
assistant to supervisor type duties and 10% as a working
electrician (on his tools). In 1985 however a substantial amount
of the work allocated to the worker was as "a working electrician"
and there was a diminution in his work of a clerical/supervisory
nature. The worker claims that the change resulted in a
considerable loss of status and that duties previously assigned to
him are being allocated to others who are more junior. The
Company denies the claim and contends that the worker is employed
as an electrician and is therefore entitled to carry out any work
proper to an electrician which is allocated to him by his
supervisors. Local discussions failed to resolve the issue and
the dispute was referred to the Conciliation Service of the Labour
Court on the 19th January, 1989. A Conciliation Conference was
held on the 6th February, 1989 but no agreement was reached. The
dispute was referred to the Labour Court for investigation and
recommendation on the 6th February, 1989. A Court hearing was
held on the 21st February, 1989.
WORKER'S ARGUMENTS:
3. 1. There has been a considerable amount of ongoing
correspondence between the worker's legal representative and
the Company concerning his conditions of employment. Most
recently these conditions have deteriorated even further and
his working conditions are now intolerable. The worker was
appointed as a technician electrician in June, 1978 and was
employed mainly on duties of a clerical/assistant to
supervisor nature (details supplied to the Court). He was not
involved in any manual labour or "on tool" situations. He
continued to perform these duties without interruption or
variation until approximately 1985. Whereas it is true to say
that his title and description was changed in October, 1981 to
that of a "designated technician electrician," this did not
involve any change whatsoever in status or work practice and
was a change in title only. Particularly, in 1981, the worker
enquired of Management whether the change in title to a
designated technician electrician would involve any change in
his working contract, he was assured that his contract and
duties would not be affected in any way. This was in fact
true and until 1985 his duties and conditions of employment
remained unchanged.
2. On return to one of the Board's sites in the performance
of his duties in 1985, the worker had an argument with his
supervisor, who upbraided him and gave out to him for
performing one of the tasks included in his contractual
duties. During the course of the argument the supervisor
threatened that he would "have to see about getting a tool
box" for the worker. Shortly after this argument the Company
purported to unilaterally vary the contract of employment of
the worker. There has been a massive diminution in the
responsibility status and duties of the worker since 1985 and
that diminution has been getting progressively worse. He is
now performing manual and menial tasks more appropriate to an
"approved electrician." All of his management and supervisory
duties have been gradually eroded and he now finds himself
being treated the same as, or less than, other employees of
the Company who were previously his subordinates. He is a
very highly qualified electrician, even more qualified than
some of his supervisors. He has an exemplary work record and
has devoted his entire working life to the Company and has
many years of practical experience. From time to time other
persons of a lower status have been performing duties
previously performed by him, for example a linesman now
surveys areas where maintenance work is about to commence, and
notifies customers in the area. He also compiles patrol
sheets, reports on working sites directly to the supervisor.
This duty was formerly performed by the worker. Figures and
data on maintenance, recording and monitoring work, previously
performed by the worker, is now undertaken by a technologist.
The supervisor has also taken over much of the worker's
duties, and delegates work to others rather than to the
worker. This treatment is in fundamental breach of his
contract of employment and derives from unjustifiable
victimisation of the worker. The worker has also been
wrongfully accused of malingering, and of being a liar by a
supervisor in a public place.
3. The worker has repeatedly raised his problems with Union
officials and objected to his treatment. He has approached
Management on many occasions with his objections. Efforts by
his Union and by his legal advisor to avail of the services
of a Rights Commissioner to intervene in the dispute have been
rejected by the Company. While the Company has denied any
redress to the worker they have conceded by implication (in
correspondence) that his work conditions have changed and has
attempted to justify the unilateral change in the worker's
conditions by reference to agreements to which he is not a
party and to which he dissents. It is an established tenet of
employment law that an employee will not be bound by
collective agreements, the terms of which they are unaware of,
or to which they dissent. The worker's contractual
responsibilities, duties and conditions as assigned to him in
1978, should be restored to him forthwith. He also requests a
retraction of the allegations made against him and an apology
for same.
COMPANY'S ARGUMENTS:
4. 1. The Company has its own tried and well proven procedures
agreed with the Unions for the conduct of industrial relations
in the Company. These procedures protect the acknowledged
rights of everyone concerned and are specifically designed to
ensure fair play to the individual. The Court has in
recommendations both in 1984 and in 1988 endorsed these
procedures and stated that it doe not wish to supplant or
detract from them in any way. The processing of issues
outside these procedures has very serious implications for the
future conduct of industrial relations and voluntary
collective bargaining in the Company. The worker is employed
as an electrician and is a member of the E.T.U. He was fully
represented by his Union in progressing his case through the
agreed procedures including a formal meeting at central level
in April, 1986. Following the exchange of views, and the
clarifications provided at this meeting, the Union did not
refer the matter further.
2. The Company negotiates category agreements with the Unions
representing electricians. The E.T.U., is by far, the
majority Union representing electricians in the Company and
the agreements are negotiated on behalf of their total
electrician membership. The duties appropriate to the
electrician category cover a wide range of activity. All
electricians are employed as working electricians and this is
clearly enshrined in the category agreements. The worker has
benefited fully from these agreements and, arising from his
promotion to designated technician electrician in 1981 he has
received an increase of, #1000 per annum over his salary as a
technician electrician. A number of designated technician
electricians are formally designated to deputise for the
supervisor in his absence on annual leave, training courses,
sick leave etc. They, also, as required assist the supervisor
when the volume of work or their particular expertise warrants
it. The status of the designated technician electrician
arises from this deputising function, assisting the supervisor
in high level duties as required, and in carrying out the more
skilled electrician tasks.
3. For the Court's information the worker's situation is that
his appointment as a technician electrician in 1978 was
clearly as a working electrician, in similar manner to other
appointments made at the time. All of the technician
electricians were expressly told of the "working electrician"
requirement because some previous appointees had tended to
gravitate towards "office work." The worker's present
supervisor was one of these appointees and he is able to
confirm this fact. The worker, having been appointed to the
scale himself, confirmed this position during a conversation
with another supervisor. Arising from the absence of a
supervisor on consultancy and the volume and type of work, the
worker's involvement in duties assisting the supervisor were
above normal in the early years. However, he also involved
himself in lower graded work (e.g. notifications of outages,
minor surveys). On his appointment as designated technician
electrician in 1981, arising from an agreement with the
electrician category, it was again clearly spelt out to the
worker and confirmed in writing, that he was a working
electrician. This was reinforced at an assessment interview
in 1983 for overscale payments.
4. It is important to note that the worker is not unique in
the manner in which he is required to carry out his duties.
All designated technician electricians in similar positions in
the Company are working electricians and the time spent in
providing assistance to, or deputising for the supervisor
varies in accordance with the exigencies of a situation at any
point in time. There is therefore no question of a loss of
status insofar as the worker's position is concerned. He has
resisted all Management endeavours to get him to co-operate in
the implementation of the agreements covering his category and
has created an intolerable work situation by his lack of
co-operation with his supervisor. He has refused to operate
improved work methods, use revised allocation systems, and
make the best use of resources allocated to the work unit.
Indeed his example to other staff is not conducive to his
fulfilling his deputising role, despite the numerous efforts
of management to counsel him to mend his ways.
5. The appropriate procedure for the worker is for him to
process his grievances via his Union and agreed Company
procedures. The Company and the Union have the right to
negotiate agreements covering the electrician category under
the system of voluntary collective bargaining and that the
individual members must comply with the provisions of such
agreements. If individual members of the category were
allowed to refuse to implement aspects of these agreements and
to operate outside the agreed procedures the implications for
the conduct of industrial relations in the Company would be
very serious indeed. If the worker were to succeed in opting
out of these agreements there would be widespread
repercussions for other electricians in the Company as his
situation is not unique, as he claims.
RECOMMENDATION:
5. The Court recommends that this worker process any grievances
via his union and the agreed procedures. It must be recognised
the E.S.B. and the Unions have the right to negotiate agreements
covering the electricians and that all electricians should comply
with those agreements.
The Court does not recommend in favour of the claimant.
~
Signed on behalf of the Labour Court
John M. Horgan
_____________________
3rd March, 1989 Chairman.
T.O'D./J.C.