FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : OFFICE OF PUBLIC WORKS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Permanency.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union on behalf of two of its members currently employed as Standby Relief Constables ("Standby Constables") located in Dublin Castle. The Claimants form part of a "Standby Panel" of employees responsible for providing security services to State properties managed and maintained by the Office of Public Works (OPW) in various locations throughout Dublin. Commencing at two seperate periods of time, both Claimants were required to provide cover for two permanent vacant positions in Dublin Castle and both remained doing so in a permanent capacity until 2010 when the permanent vacancies were sought to be filled by permanent staff, as part of a redeployment exercise, transferring to Dublin Castle from an alternative OPW site. It is the Union's contention that the Claimants are permanent staff and should therefore be allowed to remain in their current positions in Dublin Castle on a permanent basis. The Employer rejects the Union's claim and contends that the Claimants are not permanent staff and were assigned to the Dublin Castle location as Standby Constables. The Employer further contends that there is no basis to allow the Claimants to remain at Dublin Castle when all vacancies for permanent positions must be filled by permanent staff transferring as part of the redeployment process.The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission.
As agreement was not reached, the dispute was referred to the Labour Court on the 21st June, 2011, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 30th September, 2011.
UNION'S ARGUMENTS:
3. 1. Both Claimants have carried out their roles at Dublin Castle in a permanent capacity over long periods of time. The Union asserts that they should be regarded as permanent employees and be allowed to remain there accordingly.
2. The Union alleges that the Claimants were previously assured permanency by means of an oral contract with a former manager.
3.The Union contends that the Employer has had ample opportunities to fill the vacancies at Dublin Castle however it allowed the Claimants to remain there in these positions until the process of redeployment commenced.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer strongly maintains that the Claimants are employed as Standby Constables on a Standy Panel providing relief to permanent employees.
2. The Employer asserts that the Claimants were not provided with permanent contracts and furthermore, no manager had or has the authority to issue contracts to this effect.
3.Concession of the Union's claim could lead to further knock-on claims for the Employer.
RECOMMENDATION:
- The matter before the Court concerns the Union’s claim on behalf of two workers seeking to be retained in the full time roles they occupied since 2006 and 2008 respectively. Both workers were recruited as Standby Constables by the OPW and were based at Dublin Castle. When permanent positions became vacant in 2006 and in 2008 the Claimants were assigned the roles and continued in those roles until 2010, when the employer replaced them with permanent Constables transferred from Marlborough Street, due to the cessation of such duties at the latter location.
The Union sought permanency for the two Claimants in the full time role they had carried out since 2006/2008. It held that both workers had been given commitments that their positions were de facto permanent. Therefore, the Union held that by mutual agreement their positions were no longer classified as Standby Constables but as permanent Constables.
Management submitted that the workers continued to be classified as Standby Constables in accordance with the terms of their contracts and held no legitimate claim to permanent Constables positions. In any event the filling of the vacant positions was precluded by the moratorium on recruitment and promotions in the public sector. However, there was no restriction on filling vacant positions in Dublin Castle in circumstances where permanent Constables were being transferred from Marlborough Street. In any event management stated that there are a further eight positions at Constable level waiting to be filled.
Having considered the submissions of both parties, the Court can understand how in circumstances where the Claimants became accustomed to working the equivalent working hours of the permanent Constables over a prolonged period of time, they came to form the view that these arrangements would continue. However, in all the circumstances of this case, the Court is restricted by the terms of the moratorium on recruitment and promotions in the public sector, from making any recommendations at this point on the issue of the filling of vacant posts.
The Court notes that management accepted that as part of its duty of care to the Claimants it was committed to endeavour as far as possible to minimise the consequences of the impact of the redeployment on the Claimants. The Court endorses this point and recommends that every effort should be made to provide the Claimants with sufficient working hours to limit any potential loss of income.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th October 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.