FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Termination of secondment of the worker.
BACKGROUND:
2. The dispute concerns the decision by Dublin City Council (DCC) to repatriate a worker, a Senior Executive Officer, (SEO), on secondment in Ballymun Regeneration Limited project ( BRL) to her original employment, prior to the end of the period of her secondment. BRL was established in 1997 as a separate legal entity within DCC. Its function is to develop and implement a masterplan for the physical and social and economic regeneration of Ballymun within a timeframe of ten to fifteen years. In June, 2005 DCC notified the worker that it intended to terminate her secondment prior to the expiry date of October, 2007. The worker sought to appeal the decision. Following a meeting with the City Manager at which the claimant outlined her objections to repatriation to DCC the City Manager, having considered the worker's submission, upheld the decision to reassign her to a post within DCC. The worker was subsequently informed that she was to be reassigned to the Housing and Community Department with effect from July, 2005. The worker, while on annual, leave suffered an illness and has been unfit to return to work to date. The Union claimed that the worker had been unfairly treated and sought to refer the issue in dispute to the Labour Relations Commission. The DCC objected to such a referral. On the 6th October, 2005 the Union submitted a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held on the 6th December, 2005.
UNION'S ARGUMENTS:
3. The claimant's original secondment expired in 2002 but following a series of meetings and negotiations between DCC and BRL the secondment period was extended until October, 2007. The City Manager's order made in 2002 did not specify any conditions or make any provision for early termination of the secondment period. It was the expectation of the claimant that she would remain with the project, at a minimum, until the expiry of the period of secondment.
2. The claimant has diligently and faithfully discharged her duties and it appears that despite her committed service without giving any consideration to the objections she presented to the City Manager from a corporate and professional standpoint, the DCC intend to implement this unilateral change to her employment terms.
3. Proper negotiations did not take place and the grievance procedure has been abandoned by DCC which also refused to consider an appeal, refused to meet with the Union, refused to go to conciliation at the LRC and forced the Union to refer the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969.
COUNCIL'S ARGUMENTS:
4. 1. The staffing arrangements for DCC and all related bodies or businesses are a matter to be determined by the DCC and in this particular instance the City Manager has acted lawfully and properly in reassigning the claimant. The claimant is a substantive SEO in DCC, subject to the normal contractual arrangements of SEO's in DCC. She is an employee of DCC and is treated as such. This applies to other personnel issues apart from redeployment and assignment. For example, promotional competitions confined to DCC staff are open to seconded staff. In fact, the claimant successfully competed for a confined DCC position during her secondment.
2. Although the claimant continued to be reassigned to BLR following her promotion, the City Manager now considers it timely and appropriate to move her particularly given the strength of the BLR project at this stage coupled with his requirement to fill a critically important post elsewhere in DCC. The City Manager is confident that the claimant can do this job and that the time is right for her to move to another area and for another official to be assigned to BRL. The City Manager assigned the claimant in a reasonable and fair manner and in doing so has provided development opportunities for her and new opportunities for the development of another member of staff.
RECOMMENDATION:
The dispute before the Court concerns the City Manager's decision to reasssign the claimant from the Ballymun Regeneration Limited project (BRL), which she was seconded to in 1997. This decision was made in the context of the mobility clause, which applies to all staff at or above Senior Executive Officer level. The Union on behalf of the claimant sought a continuation of her position with BRL at least until the expiry of her secondment in October, 2007.
While not challenging the City Manager's right to manage staff, the Union holds the view that in this instance, such a decision is unfair and unreasonable in the circumstances and secondly, that as a separate legal entity, seconded employees such as the claimant are not subject to the mobility clause.
In accepting her appointment to Senior Executive Officer level in 2000, the claimant indicated to the Court that she was aware that it may affect her position in BRL and knew of the possibility of reassignment. However, when her secondment period was renewed, she assumed that she would continue to remain in that position.
The City Council stated to the Court that the claimant's secondment to BRL did not override her terms and conditions with DCC and her appeal of the City Manager's decision was denied.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that the City Manager has the prerogative to reassign staff at a particular level - Senior Executive Officer and above. The claimant was appointed to that level following her secondment to BRL. The terms of that appointment, which she fully accepted, included a contractual right to carry out such duties or functions as may be delegated by the Manager or such other officer as the Manager may from time to time determine. Similarly, the terms of secondment order entered into in 2002 referred to "the period of her secondment, or until alternative arrangements are made".
The Court is clear that the claimant is not an employee of BRL and is subject to the terms and conditions of her employment within DCC, which included a requirement to be assigned on the basis of her skills and experience to different duties, or functions as her Manager may decide. Accordingly, the Court upholds management's position on this matter and dismisses the Union's claim.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th December, 2005______________________
todDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.