FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9); INDUSTRIAL RELATIONS ACT; 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY SIPTU/LAPO) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner r-069188-ir-08/GC
BACKGROUND:
2. The Worker commenced employment as an Executive Engineer in 1982 and was appointed a Senior Executive Engineer with Dublin Corporation, now Dublin City Council, in 1998. The Public Appointments Service (PAS) advertised a competition for the post of Senior Engineer on 2nd March, 2006, and the Worker was interviewed after responding to the advertisement and he was placed 5th on the panel for Senior Engineer. Under Better Local Government (BLG) there is an agreement between Management and Union that there were 19 Senior Engineer posts in the Council and that it should never drop below this agreed number. However, if the supernumerary posts are excluded the Union contends that one Senior Engineer post was vacant since March 2007 and that the failure by the Council to appoint the Worker, who was by then the next candidate on the panel for that post, was in breach of the BLG Agreement. Management insist that the BLG Agreement was not breached as there was no vacancy for the position of Senior Engineer with the Council since one of the 19 posts was abolished and converted into the new role of Executive Manager.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 2nd March, 2009, the Rights Commissioner issued his Recommendation as follows:
" While I have sympathy for the position of the Claimant, it would have been preferable had the Council described the substantive and project posts as a total of "floor" numbers below which the Senior Engineer posts will not drop.
Based on the evidence and submissions and the findings above, I cannot find in favour of the claim".
On the 30th March, 2009, the Worker 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 6th May, 2009.
UNION'S ARGUMENTS:
3. 1. The failure by the Council to fill the position represents a breach of the BLG Agreement. Had the Agreement been honoured the Worker would have been appointed to the post as he was the next-in-line candidate.
2. By acting unilaterally in abolishing one of the posts, Management deprived the Worker of an opportunity of advancement within the Council in terms of status, pay and pension entitlements.
3. The introduction of a recruitment and promotions embargo effectively means that the opportunity to correct this situation may not occur again within the Worker's working lifetime.
COMPANY'S ARGUMENTS:
4. 1. Since the BLG Agreement the number of Senior Engineer posts has never dropped below 19 and in fact it has always been higher than that number, and currently there are 22 in total which includes 4 which are supernumerary.
2. The Council has no jurisdiction in appointing Senior Engineers as only the PAS have this authority and they state that the panel which was formed in May 2006 only had a lifespan of 12 months.
3. The matter relating to the substitution of the Senior Engineer post for an Executive post was dealt with by way of a written statement from the Personnel Officer in which he gave a commitment to full consultation with the Union prior to any future proposal to quash a substantive post.
4. The Council is subject to the Department of Finance moratorium on staffing in the Public Sector following the issuing of Circular LG(P)1497 dated 27th March, 2009.
DECISION:
The Union, on behalf of the Worker, appealed the Rights Commissioner’s Recommendation, which found against his claim that he should have been appointed from a panel to a vacancy at Senior Engineer level in May 2007.
Management disputed the claim on the basis that there was no vacancy to be filled at that time. It accepts that he was next in line on the panel for any vacancy which may have arisen before its expiry in May 2007. It contended that it met its obligation at all times to have a minimum of 19 Senior Engineers as provided for under the 2001 “Better Local Government Agreement” and in May 2007 there were 24 Senior Engineers employed.
Having considered the oral and written submissions of both parties, and having examined the Better Local Government Agreement, the Court is satisfied that there were no vacancies at Senior Engineer level in May 2007 and that the Agreement was honoured in full by the City Council.
Accordingly, the Court upholds the Rights Commissioner’s Recommendation and the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th May, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.