Labour Court Database __________________________________________________________________________________ File Number: CD91253 Case Number: AD9152 Section / Act: S13(9) Parties: DUBLIN BUS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. S.T. 46/91 concerning a claim on behalf of a worker for inspectors rate of pay for "desafer" work.
Recommendation:
10. Having considered the submissions of the parties the Court
does not consider that there are grounds to alter the
recommendation of the Rights Commissioner.
The Court so decides.
Division: CHAIRMAN Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD91253 APPEAL DECISION NO. AD5291
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: DUBLIN BUS
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. S.T. 46/91 concerning a claim on behalf of a
worker for inspectors rate of pay for "desafer" work.
BACKGROUND:
2. Safes are fitted to all Dublin Buses (Labour Court
recommendation 9901). The safes are used by bus crews to make
cash lodgments during the working day. Initially it was envisaged
that the bus crews, on finishing their late tour of duty, would
change the safes. However agreement could not be reached with the
relevant Unions and the duty was performed by Inspectors on a
temporary basis. This arrangement continued until the completion
of a productivity agreement with the Unions representing
supervisors in September, 1989. It was also agreed that two
Inspectors who had long service and were unfit for other duties
would remain on desafing work.
3. The worker here concerned was employed as a driver from 1964
up to August, 1988 when he was promoted to the grade of Inspector.
Initially he was on ticket-checking duties. He was unhappy in his
duties and when, in October, 1988, the Company advertised for an
Inspector for desafing duties in Clontarf garage he applied for
the position. His application was unsuccessful. However he was
appointed relief man and performed desafing duties from time to
time at Clontarf and Ringsend Garages.
4. The worker did not reach the standards required for Inspector
grade and was reverted to driving duties with no loss of seniority
on 26th February, 1989.
5. In January, 1990 the Company advertised for desafing
operatives from bus drivers, conductors and engineering
operatives. The worker here concerned applied for and secured
one of the positions. He commenced desafing duties in August,
1990. The Union subsequently lodged a claim on behalf of the
worker that he be paid an Inspector's rate of pay. The claim was
rejected by the Company. (The basic rate of pay for desafer is
#180 a week plus allowances when applicable).
6. The matter was referred to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner
investigated the dispute on 18th April, 1991 and issued the
following recommendation on 30th April, 1991.
"FINDINGS
The claimant is most unfortunate in that he failed to qualify
as an Inspector. He had a probationary period as an
Inspector from 22/8/88 to 26/2/1989 when he reverted to
driving duties by agreement.
2. During his probation he had undertaken Desafing Duties
very successfully. He subsequently applied for specialist
Desafers job and was one of ten chosen.
3. Two Inspectors were appointed among the ten. They were
allowed to retain their Inspector rate of pay on a "Red
Circling" basis and by agreement with the Union group.
4. The claimant had given entire satisfaction at the
Desafing element of his Inspector's duties. He was very
unhappy on Revenue Control in certain City areas."
He also recommended as follows:
"It is a fact that had the claimant succeeded in becoming an
Inspector he would now in all probability be performing the
same work for the Inspector's rate of pay.
Unfortunately he did not so qualify and I cannot use the red
circling of the other two men as a means to punish the
Company by way of increased cost.
In addition there is no guarantee that the other seven men
would not pursue a claim for parity in the circumstances of a
positive recommendation for the claimant."
7. The Union appealed the above recommendation to the Labour
Court under Section 13(9) of the Industrial Relations Act, 1969.
The Court heard the appeal on 17th June, 1991.
UNION'S ARGUMENTS:
8. 1. The Company claim that the two Inspectors are on desafing
duties on medical grounds. This was not a factor in their
original appointments. The worker here concerned has a
similar medical condition as the Inspectors on desafing
duties.
2. The worker had a reasonable expectation that he would
secure a position as a desafer because at the time he was an
Inspector only two of the seven garages had full time
desafers.
There were never any complaints about his desafing work. He
spent 3 continuous weeks desafing at Ringsend Garage shortly
before he was reverted back to driving duties.
3. Inspectors have returned to their former grades before but
it was always at their own request that they did so. There
was never a case of anyone staying for 6 months before
returning. The Unions immediately protested the worker's
compulsory relegation to the driving grade. The worker's
letter of appointment does not mention a probationary period.
The worker did not realise that he was on probation. Whilst
he was unhappy at some of the Inspectors duties, he would not
have stayed so long in the grade had he not got a reasonable
expectation of being assigned to desafing work on a full-time
basis. The Company have since changed the wording of their
appointment letters to emphasise the 6 months probationary
period.
COMPANY'S ARGUMENTS:
9. 1. Desafing work was never viewed as appropriate work for
supervisors. Inspectors did the work temporarily for a
period. The Company with the agreement of the Trade Unions
allowed the two appointed Inspectors who were unfit for the
other duties in the grade to remain on desafer work.
2. The worker was serving a six month probationary period and
failed to reach the required standard for Inspectors work. He
returned to driving duties almost a full year prior to the
desafing positions being advertised.
3. The worker was well aware of the rates of pay when he
applied for the desafer position.
4. There are seven other desafers on desafer rates of pay and
concession of this claim would set a precedent which would
have serious repercussions.
DECISION:
10. Having considered the submissions of the parties the Court
does not consider that there are grounds to alter the
recommendation of the Rights Commissioner.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
_____________________
28th June, 1991. Chairman
M.D./J.C.