FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SLIGO COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-042237-Ir-06-MH
BACKGROUND:
2. The worker is employed by the Council as Chief Fire Officer (CFO) for Sligo County Council/Corporation. He was initially appointed to the position of Acting CFO for Sligo/Leitrim in September, 2001, after the post had been vacated by the former Chief Fire Officer for Sligo/Leitrim. This post held a 5% differential (as per Arbitration Board Report No. 138 of December, 1989) which was paid to the worker concerned in his Acting capacity. He continued to receive the allowance until he commenced work as permanent CFO for Sligo County Council/Corporation on 10th September, 2002, when both Sligo and Leitrim Local Authorities advertised for the posts of separate CFOs for Sligo and Leitrim, thus creating a CFO for Leitrim and a CFO for Sligo. At this stage the 5% differential was withdrawn from the worker. His case is that he should have continued to be in receipt of the allowance on an indefinite basis and he is seeking both the restoration of it and the retrospective payment of it to the 10th September, 2002, when it was withdrawn. The Council's case is that the differential only applied when the Acting/CFO had responsibility for both Sligo and Leitrim.
The dispute was referred to a Rights Commissioner and his findings/recommendation were as follows:
"Arbitration Board Report No 138 of February 1990 retains priority status in this matter and, therefore, I must affirm the respondents right to change the arrangement and adjust the claimant's remuneration accordingly.
I can understand how the claimant thought that his acting position might continue into the future and suspect that the respondent was not or did not feel in a position to be totally frank initially in this regard. I venture to suggest however that the respondent should have been explicit in relation to it's request for Ministerial sanction for the creation of a singular responsibility for the Chief Fire Officer in Sligo. If it had entered into correspondence with the Department prior to the interviews in July 2006 it should have made that clear to the interviewees or if it had entered into such correspondence thereafter it should have made it known to the claimant simultaneously.
Having carefully considered the submissions made by the parties I recommend against the claimant. I feel, however, that he was treated poorly initially and recommend a once off payment of €5000 (say five thousand euro) to ensure amicable closure".
The worker appealed the recommendation to the Labour Court on the 19th September, 2007, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th February, 2008, in Sligo.
UNION'S ARGUMENTS:
3. 1. As the Rights Commissioner found the Council was not "frank" as the changes were clearly contrary to the terms of "Better Local Government". This agreement took account of and superseded the 1989 Arbitration Report.
2. Circular Letter LG (P) 09/05 clearly states that allowances are to be retained on a personal-to-holder basis. The only Council which has made an exception of this is Sligo.
3.It was made clear to the worker in 2001 that he would be paid the 5% differential. It is unfair the he should be penalised by a reduction in salary as he has abided by all the agreements made under Better Local government.
COUNCIL'S ARGUMENTS:
4. 1. Payment of the 5% differential was conditional on the continuance of the arrangement whereby the CFO had responsibility for the fire services in Sligo and Leitrim. The worker was paid the 5% differential in his Acting position as he was responsible for both fire services.
2. The worker was in full knowledge of all facts when he accepted the permanent post of CFO for Sligo in November, 2002, including the fact that the post did not retain the 5% differential. He was aware that the permanent post of CFO for Sligo County Council/Corporation was different from the Acting post of CFO for both Sligo County Council/Corporation and Leitrim County Council which he filled in September, 2001.
DECISION:
The case before the Court concerns an appeal of a Rights Commissioner’s recommendation concerning a claim by a worker against Sligo County Council seeking the retrospective restoration of the 5% allowance which formerly attached to the position of Chief Fire Officer for Sligo County Council/Corporation and Leitrim County Council. The Claimant had been in receipt of this additional allowance when he was Acting Chief Fire Officer for Sligo County Council/Corporation and Leitrim County Council but it no longer applied when he became Chief Fire Officer for Sligo County Council /Corporation.
The Rights Commissioner found against the claimant, however, he recommended a once-off payment of €5,000 “to ensure amicable closure” to the matter.
The original post concerned was that of Chief Fire Officer for Counties Sligo/ Leitrim and Sligo Corporation.
Under Arbitration Board Report No 138 of 20th December, 1989, paragraph 50 sub-paragraph (g) recommended that the salary for the post of Chief Fire Officer for Sligo and Leitrim County Councils / Sligo Corporation attract an additional 5% allowance to the salary“conditional upon the continuance of the arrangement whereby he has charge of both Counties”. The salary applicable was that of Senior Executive Engineer in Local Authorities.
The Claimant claimed that he was entitled to retain this 5% allowance following his appointment to the post of Chief Fire Officer for Sligo County Council/Corporation on the basis that its withdrawal breached the provisions of Department of the Environment Circular Letter CL LGB 9/00 Better Local Government (BLG) of 10th August, 2000,and the provisions of Department of Environment Circular Letter LG (P) 0905 Fire Service Restructuring (FSR) of 30th June 2005, and the absence of local negotiations regarding the matter under either BLG or FSR.
The Court has carefully considered both the written and oral submissions made by both parties and the application of Arbitration Board Report No 138, BLG and FSR to the Claimant.
The Court is satisfied that the Claimant was fully aware of the post he applied for in June/July 2001, namely, that of Chief Fire Officer for Sligo County Council/Corporation and that that post did not carry responsibility for County Leitrim. The Court is also satisfied that the Claimant was kept apprised of the process of seeking sanction for the post from the Department of the Environment, he sought details of the remuneration for this post from Sligo County Council and was advised by memorandum of 4th February, 2002, that the salary scale applicable to the post was that of Senior Executive Engineer in Local Authorities without the additional 5% allowance which the additional responsibility for County Leitrim carried.
The Claimant was therefore fully aware of the remuneration arrangements for the post for nine months before he formally accepted the post in writing on 12th November 2002. In addition, the Claimant told the Court that he was aware of the contents of Arbitration Board Report No. 138 and BLG throughout.
The Claimant therefore accepted the post of Chief Fire Officer for Sligo County Council/Corporation against that history and he accepted the terms and conditions, including remuneration attaching to that post effective 10th September, 2002, until he raised his claim locally with Sligo County Council some 3½ years later in October, 2005, following the issuing of FSR by the Department of Environment on 30th June, 2005.
The Court does not see merit in the claim under the provisions of Arbitration Board Report No. 138, BLG or FSR and is of the view that that Report and the two Circulars were appropriately applied.
The Court therefore disallows the appeal and affirms the Recommendation of the Rights Commissioner.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th March, 2008.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.