Labour Court Database __________________________________________________________________________________ File Number: CD93111 Case Number: AD9336 Section / Act: S13(9) Parties: SLIGO COUNTY COUNCIL - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. ST424/92 concerning the suspension of a retained firefighter without pay.
Recommendation:
5. The fire service is a critical service in any area and as such
requires to be as efficient as possible. It therefore is a
requirement that the members have the fire tenders mobile in the
shortest possible time.
By its very nature, the mobilisation times of the fire tenders, in
a "retained" fire service area will vary; these times will reflect
the arrival times of the members following the emergency alert.
For the service to operate to maximum efficiency requires the
management and members to be clear as to what is understood as
"prompt response" to fire calls.
To this end the management and the members and their
representatives should clarify their understanding of "response
time" bearing in mind that arrival times need to be attainable and
fire tenders need to be mobile in the shortest time possible.
It appears to the Court that in this case the complainant was
advised on a number of occasions that his response times were not
satisfactory. He made no response or comment on management's
allegation, this the Court regards as unacceptable.
The Court feels, however, that notwithstanding the warnings given
to the complainant, the management treated him unfairly in
suspending him from duty unilaterally and without giving him the
opportunity to state a case or to be represented.
In view of the above it is the decision of the Court that the
complainant should be immediately reinstated on the undertaking
that he will respond as quickly as possible to emergency alerts in
the future.
The Court recommends that the union and the management as a matter
of urgency clarify the issue of acceptable response times and
inform the members of the turn-out times and the implications for
members of the service of not achieving the necessary standards.
The Recommendation of the Rights Commissioner should be amended
accordingly.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD93111 APPEAL DECISION NO. AD3693
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: SLIGO COUNTY COUNCIL
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
ST424/92 concerning the suspension of a retained firefighter
without pay.
BACKGROUND:
2. The worker concerned, who is a member of the Sligo Town Fire
Service, commenced his employment with the Sligo County Council as
a retained firefighter in 1983. Sligo County Council employs 6
full-time firefighters and 16 retained firefighters in the Sligo
Town Brigade. The retained firefighters are rostered on a
week-on, week-off basis. Most of the retained firefighters are
employed within the Sligo Borough and are available without delay
through agreement with their full-time employers.
The pre-arranged turn-out requirement is one appliance with a
minimum of six firefighters for emergencies/fires outside of the
Sligo Borough and two appliances with a minimum of four
firefighters within the Sligo Borough.
By letter dated 5th December, 1991, the worker concerned was
informed by the Chief Fire Officer that his recent response times
were not acceptable.
By letter dated 10th July, 1992, the Deputy County Manager
informed the worker that out of forty attendances in the previous
six months only seven attendances were within five minutes, the
target turn-out time for the brigade. By letter dated 25th
August, 1992, the worker was informed that his response-times in
the period 11th July, 1992 to 7th August, 1992 had reached an
unacceptable level and that with effect from 26th August, 1992 he
was to be suspended from duty.
On 8th September, 1992 a meeting took place between the parties,
following which the Council proposed to lift the suspension with
effect from 1st October, 1992 on condition that the worker
concerned signed an undertaking to report for all fire calls
within a period of five minutes. The Council's proposal was not
acceptable to the union.
The matter was referred to a Rights Commissioner for investigation
and recommendation. The Rights Commissioner on 13th January,
1993, recommended as follows:
"I recommend that the suspension be set aside immediately and
that the claimant receives #1,500 for lost duties since the
26/8/92. I further recommend that negotiations commence in
an orderly way on a revision of the contracts as with the
increasing traffic and the extension of the Borough Boundary
the clause in the Contract stipulating residence within a
mile or less of the Station will not solve the problem of
those who may not be able to make the new time limit which is
half as long as the 10 minutes allowed in Ennis and Tralee,
and compares very unfavourably with the no limit rule in
seven other provincial counties mentioned by the Union".
The Council appealed the Rights Commissioner's Recommendation to
the Labour Court on 8th February, 1993. The Labour Court heard
the appeal on 11th March, 1993.
COUNCIL'S ARGUMENTS:
3. 1. When recruited, firefighters commit themselves to be
available to the fire service when required and at short
notice. They are paid an annual retaining fee in respect of
this availability. In the case of the worker concerned the
Council maintains that he is not providing the availability
required.
2. The worker concerned had become a persistent late attender
and the Council was forced to take disciplinary action.
Failure to take disciplinary action would have undermined the
management of an essential service and could have resulted in
the Council failing to fulfil its statutory obligation to
provide a prompt and efficient firefighting service.
3. The Council could not allow a situation to continue
whereby the worker concerned, when on call, attended in time
for the first appliance on only 25% of occasions in 1991/1992.
During that period, he failed to attend in time for even the
second appliance on 10% of calls.
4. Suspension was warranted because of the worker's refusal
to heed verbal and written warnings about his attendance and
his failure to tender satisfactory or sustainable reasons for
persistent late attendance.
5. The suspension would only have lasted for five weeks, had
the worker concerned made the commitment required.
6. The Council is seeking to quantify rather than vary the
existing contract.
7. The Council accepts that the worker was not afforded a
hearing before his suspension but maintains that, given the
history of this case and the nature of the fire service, he
was not treated unfairly. The Rights Commissioner's criticism
in this regard is unjustified, as the worker has had
sufficient warnings and was fully aware of the consequences of
failing to improve his response times
8. However, the Council would be prepared to give the worker
concerned further opportunity to prove his availability over a
period of time failing which it would be left with little
option but to terminate his contract.
9. In all the circumstances, the Court is requested to uphold
the appeal against the Rights Commissioner's Recommendation
and to confirm the Council's right to manage an essential
service effectively.
UNION'S ARGUMENTS:
4. 1. The Council relies heavily on retained fire personnel.
The worker concerned has a good record with the fire-service
and is well regarded by his colleagues. He has always tried
to respond to call-outs as quickly as possible.
2. The Council's policy of recruiting retained fire personnel
living in close proximity to the fire station will make it
difficult for the worker concerned to respond to call-outs in
time to man the first appliance.
3. The worker's place of residence on appointment was
acceptable to the Council. He has not changed his address
since his appointment.
4. The traffic system in Sligo has become one-way which has
led to slightly slower response times.
5. The Union has no agreement with the Council regarding a 5
minute response limit. The only contractual obligation of the
worker concerned is that he responds to call-outs as promptly
as possible.
6. The response times in other comparable areas are ten
minutes.
DECISION:
5. The fire service is a critical service in any area and as such
requires to be as efficient as possible. It therefore is a
requirement that the members have the fire tenders mobile in the
shortest possible time.
By its very nature, the mobilisation times of the fire tenders, in
a "retained" fire service area will vary; these times will reflect
the arrival times of the members following the emergency alert.
For the service to operate to maximum efficiency requires the
management and members to be clear as to what is understood as
"prompt response" to fire calls.
To this end the management and the members and their
representatives should clarify their understanding of "response
time" bearing in mind that arrival times need to be attainable and
fire tenders need to be mobile in the shortest time possible.
It appears to the Court that in this case the complainant was
advised on a number of occasions that his response times were not
satisfactory. He made no response or comment on management's
allegation, this the Court regards as unacceptable.
The Court feels, however, that notwithstanding the warnings given
to the complainant, the management treated him unfairly in
suspending him from duty unilaterally and without giving him the
opportunity to state a case or to be represented.
In view of the above it is the decision of the Court that the
complainant should be immediately reinstated on the undertaking
that he will respond as quickly as possible to emergency alerts in
the future.
The Court recommends that the union and the management as a matter
of urgency clarify the issue of acceptable response times and
inform the members of the turn-out times and the implications for
members of the service of not achieving the necessary standards.
The Recommendation of the Rights Commissioner should be amended
accordingly.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
___________________
29th April, 1993 Deputy Chairman.
F.B./J.C.