FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUN LAOGHAIRE - RATHDOWN COUNTY COUNCIL - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal against Rights Commissioner's Recommendation IR94/99JH, concerning return to work after a career break.
BACKGROUND:
2. The worker concerned commenced employment with the County Council as a general operative in November, 1988 and in April, 1989 he was assigned to the Sandyford Depot as a refuse collector. In April, 1995, he applied for and was granted special leave without pay. In July, 1997, he returned to work and was assigned to the roads' maintenance department located in Mount Anville. His appointment to the roads' maintenance department resulted in a loss of earnings and the worker sought to be reinstated in his former position in the environmental section. Local level discussions took place following which the Council agreed to remunerate the worker at the basic rate applicable to general operatives employed in the environment section but refused to apply the productivity allowance which is paid to staff employed in the environment section.
The Council's position is that the worker was informed that on his return to work he would be assigned to a department where a vacancy existed and as no permanent position existed in refuse collection, he was assigned to the roads' maintenance section. The Union claims that a number of permanent vacancies have arisen in the Sandyford Depot since his return to work in 1997.
The dispute was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's Recommendation is as follows:
"Both parties, including the worker to meet within three weeks' of the date of issue of this Recommendation.
The Management are to provide for that meeting a full list of employees in the refuse section on the date the worker returned to work. The list should indicate temporary and permanent employees. Both sides should agree on whether there were any unfilled permanent vacancies (excluding short-term or temporary vacancies or unknown situations such as long-term illness) at the time the worker returned.
If there were no permanent vacancies, the worker should withdraw his claim. On the other hand if there was any vacancy for a permanent collector as set out above, then the worker's claim should be conceded. He should receive a payment equivalent to the loss incurred by his assignment to the Roads' Section to the date of this Recommendation. In addition he should receive the re-deployment package applicable in the Refuse Section when an agreement is concluded with the Council, based on his total service less the period of leave of absence."
The worker was named in the Recommendation.
The Rights Commissioner's Recommendation was appealed by the Council to the Labour Court on the 11th of November, 1999, under Section 13 (9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 26th of January, 2000.
UNION'S ARGUMENTS:
3. 1. The worker is concerned that a number of complaints which he made to the Council in relation to unsafe work practices may have been a factor in the Council's decision not to re-employ him in the environment section.
2. Since the worker's return to work in 1997, approximately ten to twelve permanent vacancies have arisen in the Sandyford Depot due to resignations or retirements. In addition, a number of temporary refuse collectors have been appointed. The worker was not considered for any of these vacancies.
3. The Union contends that the Rights Commissioner's Recommendation is fair and reasonable and provides a framework for establishing the facts that existed at the time of the worker's return to work and for bringing the matter to a satisfactory conclusion. The Court is requested to recommend accordingly.
COUNCIL'S ARGUMENTS:
4. 1. No permanent general operatives were assigned to the environment section due to the proposed introduction of a wheelie bin refuse collection system which in effect would require a substantially reduced work force for that service. Accordingly, while permanent staff resigned or retired from that section before and after the worker resumed duty the resultant vacancies were not classed as permanent vacancies. Temporary staff only were assigned to the environment section on short term contracts.
2. Due to a shortage of refuse lorry drivers and because of difficulties in recruiting drivers, two general operatives who were also classed as spare drivers (also holders of HGV licences) were appointed to permanent positions in July, 1999, principally to be available as spare drivers. They were appointed on the understanding that with the introduction of wheelie bins they would be re-deployed elsewhere in the service at the rate of pay appropriate to their new positions.
3. The worker was granted the concession of special leave without pay for the period of 1st June, 1995 to 9th of July, 1997, to carry out driving duties for a Minister of State. He was informed in writing that he would be assigned to a department having an immediate vacancy on his return. He was not guaranteed a return to the environment department.
4. Following representations from his Union, the worker was granted the environment department general operative basic rate of pay which is above the general operative basic rate.
5. Staff working in the environment department also receive a productivity payment of ½ hour's pay per day. This productivity payment applies only to the environmental department and cannot be paid to employees outside of the department. The extension of this arrangement to the worker would have serious repercussive effects.
6. The Council considers that the worker and the Union were aware of the conditions on which he was released on special leave and that he was treated fairly on his return. The Court is respectfully requested to uphold management's stance in this matter.
DECISION:
Having considered the oral and written submissions of the parties the Court recommends that the Rights Commissioner's Recommendation should be upheld. If as a result of the meeting recommended by the Rights Commissioner, there is an outstanding issue, then such an issue may be referred back to the Court.
The appeal is therefore rejected.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th February, 2000______________________
FB/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.