FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KERRY COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of Recommendation Of A Rights Commissioner R-078730-Ir-09/RG
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioner Recommendation No. R-078730-IR-09/RG. The worker concerned was employed as a General Operative with the Tralee Roads Department of the Council. Part of his work involved the maintenance of the children's playground as he was certified to carry out such work. In 2008 the Council informed him he would no longer be carrying out this work. It is the Union's claim that the worker was never given an explanation as to why he was removed from this work, as he was the only one certified to do it. The Employer's position is that following restructuring the maintenance of playgrounds has now been assigned to the Street and Beach Cleaning Crew.
The Union referred his case to a Right Commissioner and her recommendation was as follows:
"I recommend that Management of the Tralee Council should meet with the Claimant and his Union Representative to explore the possibility of accommodating the Claimant in the Street and Beach Cleaning Crew and thus enable him to continue working duties connected with Children's Playgrounds or in the alternative to explain the restructuring and duties connected with working in Children's Playgrounds"
The Union appealed the recommendation to the Labour Court on the 15th December, 2009 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th October, 2010.
UNION'S ARGUMENTS:
3. 1 The worker was the only member of the general workforce in the Tralee Area with a qualification to carry out full routine inspections of the Children's Playgrounds.
2 No clear or adequate explanation was given to the worker as to why he was removed from carrying out work on the playgrounds in the Tralee Engineering Area.
COMPANY'S ARGUMENTS:
4. 1 The maintenance of the playgrounds is just one aspect of a broad range of duties carried out by the General Operatives in the Roads Department. These duties are not specialist in nature. Members of the Street and Beach Cleaning Crew have recieved appropriate training in relation to their duties at the playgrounds.
2 Management of the Roads Engineering Areas are entitled to assign and reassign staff to any duties arising once they are appropriate to the relevant grades.
DECISION:
The matter before the Court concerns an appeal by the Union on behalf of a worker who claimed that the Council did not provide him with a clear or adequate explanation for his removal from work on the Children’s Playgrounds in the Tralee Engineering Area in April 2008.
He maintained that he was the only member of the general workforce in the Tralee Area with a qualification to carry out routine inspections of the Children’s Playgrounds and he was at a loss to understand why he was removed from such work, having being sent on such training by the Council in November 2007.
The Rights Commissioner recommended that the Council should meet the Claimant and his Union to explore the possibility of accommodating him on Street and Beach Cleaning Crew which would enable him to continue working on the Children’s Playgrounds or in the alternative to explain the restructuring process which took place.
The Council told the Court that the provision of maintenance for the specialist equipment installed in the Fenit Children’s Playground, which was opened in February 2007, and in the Ardfert Children’s Playground, which opened in January 2009, was now being provided by the company which installed the equipment and consequently there was no position available for him on the Playgrounds. Therefore, he was transferred to other duties.
The Court notes that the Claimant has since retired.
Having considered the submissions of both parties, the Court is of the view that the Council has supplied the Court with an explanation for the Claimant’s change in duties and notes that this transfer to other duties was within the Claimant’s own Division and was therefore carried out in accordance with his contract of employment. However, it is clear to the Court that the Claimant was not supplied with a fulsome explanation prior to the hearing of the appeal.
As the only remedy being sought from the Court was an adequate explanation for the Council’s actions, the Court therefore finds in favour of the Claimant and in all the circumstances overturns the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th November, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.