FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GALWAY COUNTY COUNCIL - AND - VIVIAN JUDGE (REPRESENTED BY KEVIN O'CONNOR) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of a Rights Commissioner's Recommendation No r-153957-ir-15.
BACKGROUND:
2. This case concerns a claim that the worker revert to his original contract with immediate effect.
This matter was referred to a Rights Commissioner for investigation and Recommendation.
On 24 September 2015 the Rights Commissioner issued the following Recommendation:-
- I can empathise with the claimant in respect of the change described in this case nevertheless he might view it in the context that he might have been so assigned from day one. It is clear that the respondent has the contractual right to deploy the claimant in the manner outlined and I am satisfied that its submission as it relates to the PSA and Haddington Road agreements together with the fact that the offending shift pattern is common in waterworks and sewage wins the argument in this case. Nevertheless I would encourage the respondent to take a benign view where it is in a position to facilitate family friendly arrangements in the future.
Accordingly I am not in a position to make a recommendation in favour of the claimant as petitioned.
The Union on behalf of the Claimant appealed the Rights Commissioner’s Recommendation to the Labour Court on 14 October 2015 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 5 April 2016.
UNION'S ARGUMENTS:
3. 1. The worker was employed on a five over seven day contract.
2. His contractual rights were breached contrary to the Terms of the Employment (Information) Act, 1994 as the employer altered the contract without mutual consent forcing him to work on a seven over seven contract.
3. The worker conducted himself in a professional manner at all times making sure that the treatment plant was covered at all times albeit under protest.
COMPANY'S ARGUMENTS:
4. 1. The worker’s contract of employment provides that his hours may be varied.
2. The shift pattern being undertaken by the worker reflects that undertaken by waterworks and sewerage caretakers across the country.
3. The reassignment of the worker is an essential requirement for delivery of services and is in accordance with the Public Sector Agreement 2010-2014, and subsequent provisions under the Public Sector Stability Agreement (Haddington Road Agreement) 2013-2016.
DECISION:
This is an appeal by the worker against a Rights Commissioner’s Recommendation which found against his complaint regarding his dispute with the Council when it changed his shift pattern and obliged him to work a seven over seven shift.
The Claimant was employed by the Council as a Waterworks Caretaker Grade V in May 2012. His contract of employment stated that he was employed to work a 39 hour week on a five over seven shift. It also stated that the Council reserved the right to alter his hours of work from time to time.
In February 2014 due to a vacancy which arose when a colleague was transferred to another section, the Claimant was required to cover Sundays on a shared basis from then until September 2014. In September 2014 he was informed that he would be required to cover all Sundays until the appointment of another Waterworks Caretaker Grade V at the plant. While the Claimant objected to these changes, in December 2014 he agreed to do so under protest, while the matter was being addressed through the grievance procedure.
The vacant position was filled in August 2015 and the Claimant is now working a six over seven shift.
The Council stated that the requirement to work a seven over seven shift reflects the normal working pattern for waterworks and sewerage caretakers and the hours of work comply with the Organisation of Working Time Act, 1997. It submitted that the Claimant was at all times aware that it was seeking to fill the vacant post, however, there were necessary processes to go through and it was obliged to put an alternative arrangement in place in the meantime.
Having considered the submission of both parties the Court recommends that the Claimant should continue to work the six over seven shift that is currently in operation. Furthermore, having examined the timetable and process which the Council had to engage in, in order to fill the vacant post, the Court is of the view that due to the serious and unacceptable delay in filling that post, the Claimant should be compensated by a payment of €5,000 in full and final settlement.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
9 May 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.