FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WATERFORD CITY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner R-083684-Ir-09 JOC.
BACKGROUND:
2. The worker was employed as a Traffic Warden with the Council - in a temporary position in 2004 and permanent from 2005. The Union's case is that during the course of his duties the worker was assaulted on a number of occasions and as a result he was forced to take sick leave. He was subsequently advised by his GP that the stress was having a detrimental effect on his health and he sought alternative work with the Council. The Union cited a case of a worker who had been transferred to another position and had his pay "red-circled". Although the Council was initially reluctant to accommodate the worker he was eventually moved to another position as a General Operative (GO) in the Cleaning Section, where he is currently in an acting-up role. However, his position was not red-circled as the Union had hoped.
The worker referred his case to a Rights Commissioner whose recommendation was as follows:
- a. The claimant's rate of pay be red-circled to the position he was transferred to.
- b. The parties should examine the possibility of seeking a position that would accommodate the claimant on his current rate of pay.
c. The claimant should co-operate fully with the parties in their endeavours.
The Council appealed the recommendation to the Labour Court on the 4th November, 2011, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th June, 2011, in Waterford.
UNION'S ARGUMENTS:3. 1. The worker's transfer was based on health grounds as he was assaulted on a number of occasions during the course of his job. It was not his preference to move.
2. Another employee in the Council was transferred in similar circumstance and had his rate of pay red-circled. The worker concerned should not be treated differently.
COUNCIL'S ARGUMENTS:
4. 1. The worker was informed that it was not the Council's policy to transfer employees who became unsuitable/dissatisfied with their work and that there is a fitness-for-purpose element in all posts within the Council.
2. The worker was not redeployed within the common understanding of the phrase. He was offered another position that he refused before accepting his current post which he was fortunate to get. There is no similar grade within the Council to allow for the Rights Commissioner's recommendation to be implemented.
3. The worker now operates in an area where up to 45 other GOs operate. If the Rights Commissioner's recommendation is implemented it will have major implications for the Council's pay structure.
DECISION:
The matter before the Court is an appeal by Waterford City Council of a Rights Commissioner's Recommendation, which found in favour of the Claimant and recommended that his rate of pay should be "red-circled personal to holder" in the position he was transferred to while the parties seek to find a position of the same grade for him.
The Court notes that the claimant is currently on a higher grade (on an acting-up basis) than the General Operative grade he was transferred to in September 2009 when he moved from his role as a Traffic Warden.
Having considered the submissions of both sides the Court does not accept that the claimant should continue to hold the Traffic Warden Grade when he is no longer carrying out those duties and, accordingly, upholds the appeal and overturns the Rights Commissioner's Recommendation. However, the Court recommends that the City Council should endeavour to facilitate the claimant in being appointed on a permanent basis to the Grade which he is currently acting up in.
Furthermore, the Court recommends that the City Council should ascertain whether the claimant is on the correct rate of pay at the moment to reflect his acting up role and ensure that if any retrospection is due is paid to him that it should be paid within four weeks of this Decision.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th June, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.