FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY BUILDING AND ALLIED TRADES UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR13665/03/JH.
BACKGROUND:
2. The issue relates to arrangements regarding short term cover for supervisory posts in the Drainage Division in Dublin City Council and in particular to a claim by the Union for a specific worker (details supplied to the Labour Court). The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd September, 2003, the Rights Commissioner issued her recommendation as follows:
“Based on the submissions made and for the reasons set out in the foregoing I recommend (a) that the parties enter into early negotiations on the acting-up arrangements to apply from January 2004 onwards. (b) I recommend that the worker be assigned to any acting-up positions that arise between now and January 2004. In the absence of any arrangement before that date the acting up will then fall to the senior most suitable person. (c) I recommend that the worker receive as a gesture of good will from the Council of €2,500 in full and final settlement of his claim with regard to any acting-up prior to the date of issue of this recommendation".
- On the 22nd October, 2003 the Dublin City Council appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 22nd January, 2004.
(The worker was named in the Rights Commissioner's recommendation)
COUNCIL'S ARGUMENTS:
3.1 The accepted position regarding the filing of acting or short-term vacancies is based on the criteria of senior most suitable.
2. One of the required changes in the Drainage Department was the opening up of Supervisory positions, formerly confined to Bricklayers only, to all staff. A reciprocal arrangement was agreed with the general operative unions.
3. Seniority alone cannot be the only criteria used in relation to filling short term vacancies in the Council. The Council must have the flexibility to appoint the person who best meets the requirements of the particular vacancy.
4. The fact that local discussions did not take place does not alter in any way the long established custom and practice regarding acting up.
UNION'S ARGUMENTS:
4.1 An agreement was reached through negotiations on arrangements for temporary positions and promotions on 12th January, 2000. The Council are now in breach of this agreement.
2. The worker was given a temporary position as Assistant Inspector which he carried out for a year. When the position became permanent the worker was not successful in gaining the permanent post and he reverted back to his job as Senior Bricklayer.
3. On returning to his former position the Worker was by-passed as Senior Bricklayer contrary to the standing-in agreement for Bricklayers Inspectors agreed by the parties (when absent through illness or holiday leave).
4. The worker has lost earnings of approximately €6385.00 to date.
DECISION:
The Court has considered the positions of both sides to the employer's appeal of the Rights Commissioner's recommendation. The Court endorsed the Rights Commissioner's recommendation that the parties should enter into negotiations on formalising acting up arrangements. The Court recommends that these negotiations should commence immediately and in the meantime acting up arrangements should be on the basis of senior most suitable. The Court also endorses the Rights Commissioner's recommendation that the worker concerned should be paid a goodwill gesture of €2,500. The Court decides that this should be in full and final settlement of his claim with regard to any acting up prior to the date of issue of this decision.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd_February, 2004______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.