FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIMERICK CITY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-128340-ir-12.
BACKGROUND:
2. This dispute arose from the ending of the Worker's secondment to the position of Resident Engineer. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 20th August, 2013 the Rights Commissioner issued the following Recommendation:-
- "I am not in a position to recommend either the retention of the Resident Engineer position or promotion to the position of Senior Engineer."
On the 2nd September, 2013 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 25th March, 2014.
3. 1. The Worker was seconded to the Resident Engineer position on his first day of employment with the Council.
2.The Council made a unilateral decision to privatise the Worker's work.
3.The Worker's income should be protected by his appointment to Senior Executive Engineer.
COUNCIL'S ARGUMENTS:
4. 1.The Worker was appointed to a permanent position of Executive Engineer.
2.The Worker was then seconded to a temporary Resident Engineer position.
3.The Worker automatically reverted to his substantive position when his secondment ended.
DECISION:
This is an appeal by the Union on behalf of a Claimant of a Rights Commissioner’s Recommendation which found against his claim seeking retention in the role as Resident Engineer or, alternatively promotion to the position of Senior Executive Engineer. However the Rights Commissioner recommended that in the event of a permanent position at either of these grades becoming available in the future, if the Claimant applies, his application should be given favourable consideration.
On appointment to the City Council on 5thMarch 2007 as an Executive Engineer, the Claimant was immediately assigned by way of secondment to the Capital Works Programme as a Resident Engineer. On 14thJune 2012 he was informed that his secondment was coming to an end following the substantial completion of certain capital projects. In November 2012 he was assigned duties associated with his substantive Executive Engineer post where the City Council had a need for his services. As a result of the reduction in salary he encountered coupled with the loss of site allowances he claimed that he should be regularised as a Senior Executive Engineer.
The Court notes that the Claimant has since been appointed to Senior Executive Engineer position on an acting-up basis.
Having considered the submissions of the parties the Court notes that the Claimant’s substantive role was as Executive Engineer, he was seconded to the Capital Projects as a Resident Engineer and was never a Senior Executive Engineer. The Union sought the latter in order to make up for the substantial loss of earnings the Claimant incurred when he was transferred back to his substantive post.
The Court must conclude that there is no merit in the claim to be appointed as Senior Executive Engineer and rejects that claim. The Court accepts the City Council’s right to recall the Claimant from secondment when there is a requirement which must be filled for his services within the City Council. Moreover, the Court upholds the Rights Commissioner’s Decision to give favourable consideration to any application the Claimant may make for positions as Resident Engineer and/or as Senior Executive Engineer. Accordingly, the Court upholds the Rights Commissioner’s Recommendation and rejects the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th April, 2014______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.