ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00007731

Parties:

ComplainantRespondentAnonymised Parties A General Operative A Local Authority   Representatives IMPACT None

Dispute:

ActDispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00010349-001 22/03/2017  Date of Adjudication Hearing: 10/08/2017 Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 22nd March 2017, the complainant referred a dispute to the Workplace Relations Commission pursuant to the Industrial Relations Act. The dispute was referred to adjudication on the 10th August 2017. The complainant was represented by IMPACT and two representatives attended for the respondent.   In accordance with section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General of the Workplace Relations Commission, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

The complainant is a longstanding employee of the respondent and seeks a return to the waste department, on particular terms; the respondent denies the claim.

Summary of Complainant’s Case:

The complainant outlined that he wished to return to a post in the cleansing department and that he is entitled to do so on foot of a collective agreement, which had been extended to all former cleansing staff by an arbitrator appointed by both parties. While the waste collection service was now in the hands of a private operator, the respondent still sent out four bin trucks every day. As the most senior former bin man, the complainant states that he is entitled to the next post on the crews operated by the respondent. He is also entitled to receive a payment known as the cleansing deal, provided he repay compensation he previously received from the respondent. He refers to how two other former colleagues were allowed return and disputes the existence of an 18-month limit for such a return.   In reply to the respondent, the complainant referred to a Labour Court recommendation, where there is no reference to an 18-month limit. There are 44 former bin men, but very few vacancies. The 18-month limitation period was not compatible with the panel. In respect of the pension look back, this was dealt with by a different circular where loss of benefit is assessed. There had been no discussions about disbanding the panel or moving away from the recommendation. There remains within the respondent a need for the cleansing function.   The complainant outlined that this was a unique situation and had been dealt with by the Labour Court in a recommendation covering 159 staff employed by the respondent at the time it exited waste collection services. The respondent could not unilaterally alter the Labour Court recommendation by imposing a time limit. The recommendation referred to “in these other areas in which the payments continue to apply”. This means that the cleansing deal was still paid and should be restored to the complainant.   The complainant outlined that the union did not expect staff to be able to return indefinitely but any time limit had to be agreed. No one had envisaged that the respondent would still be collecting black bags at this stage. The complainant had been 30 years in waste management and never wanted to leave. He wants what others got and that the recommendation is adhered to. It was submitted that then Chair of the Labour Court had left nothing in the balance in setting out the Court’s recommendation.

Summary of Respondent’s Case:

The respondent made a detailed submission to the adjudication. It explained the industrial relation issues arising out of the exiting by the respondent of its waste collection service. This included a Labour Court recommendation and the buying out of a payment received by waste collection staff. It refers to clarification obtained from the arbitrator of the 1st March 2012 and states that this applies only to existing waste management staff, and not former staff, such as the complainant. The respondent states that it has obtained advice from its Law Department to say that it was no longer bound by the terms of the arbitration as a period of five years had passed. It was not practical to bring back staff after so long. The two staff who returned to waste management did so within 18 months of leaving the department and repaid the compensation paid to them. The complainant indicated on the 15th February 2016 that he wished to return to waste management in light of a forthcoming vacancy. He also sought reinstatement of the cleansing deal and offered to repay the compensation. The complainant had declined the offer of the return when the respondent refused to reinstate the cleansing deal. The respondent states that the claim should not be upheld as it required consistent application of its policies regarding the payment of loss of earnings compensation and deductions therefrom.   In reply to the complainant, the respondent stated that the period of 18 months was specified as the period in which the payment was to be made. It asked whether it was tied to the recommendation forever. The named arbitrator had heard individual queries from the implementation group, so he refers to particular individuals. There were wider implications in this case as staff who were out for 5 or 6 years could pay back compensation and resume their roles. The respondent could not be expected to pay out on deals and to claim back compensation.   The respondent outlined that it was adhering to the Labour Court recommendation in relation to offering vacancies to displaced staff. It had offered the position to the complainant, but he had declined it as the cleaning deal would not be paid. It outlined that it is entitled to draw the 18-month period and it cannot leave it open-ended. They were abiding by the Labour Court recommendation and it was unreasonable to keep it open beyond 18 months. The two who did return to the cleansing department did so within 18 months.  

Findings and Conclusions:

The central issue in dispute is whether the complainant should receive a cleansing deal payment on taking up a role in waste management. He says he is so entitled on foot of a Labour Court recommendation from the year 2012 and arbitration findings made by a jointly-agreed arbitrator on individual cases. The respondent denies the claim and states that the passage of time means that the complainant is no longer entitled to return to waste management and keep the cleansing deal payment. It asserts that it is adhering to the terms of the Labour Court recommendation and arbitration findings.   It is fair to say that it was not anticipated by the parties that the respondent would still be engaged in waste collection following the exiting of the respondent from household waste collection in 2012. This is because of illegal dumping. In 2012, the Labour Court made recommendations regarding payments to operational staff, including the payment of compensation for the discontinuance of the payment and that vacancies should be first offered to displaced staff redeployed to other areas. While the Labour Court was not asked to fix a time limit for this latter recommendation, given the unambiguous wording of the recommendation, I find that the complainant, as a displaced staff member, falls within the scope of the recommendation. I also note that there must now be a small number of staff affected by this issue as it arises from the specific wording of a recommendation.   It follows that should a vacancy arise in the waste management department, and the complainant is entitled to it according to seniority, he should be allowed return and receive the cleansing deal payment from the date of his return. I do not agree with the complainant’s submission that this should be back-dated to the 26th November 2015. On returning to waste management, the complainant will repay the compensation he received, on the same basis that the two other staff members repaid this compensation on their return.

Recommendation:

CA-00010349-001 Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.   I recommend that should a vacancy arise in the respondent waste collection department and the complainant is entitled to the position on the basis of his seniority, that the complainant be permitted to take up the role and to receive the cleansing deal payment from the date of his return to waste management, as well as to repay the compensation he received from the respondent for the loss of the cleansing deal payment.   Dated:   14th December 2017 Workplace Relations Commission Adjudication Officer: Kevin Baneham Key Words: Industrial Relations Act dispute