ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00006764

Parties:

Dispute:

Date of Adjudication Hearing: 11/04/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the referral by an employee of a work related trade dispute under Section 13 of the Industrial Relations Act of 1969 (or otherwise), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing and/or made available in advance of the hearing

The Complainant herein has brought a complaint (by way of a Workplace Relations Complaint Form dated the 19^th of January 2017) pursuant to his legal entitlements under the Industrial Relations Act of 1969.

Background:

The Complainant has brought an ongoing dispute (which he has had with his Employer) to the attention of the Workplace Relations Commission by means of a Workplace Relations Complaint Form dated the 19^th of January 2017. I am satisfied that internal dispute resolution mechanisms have been exhausted. Both parties presented comprehensive written submissions and these were gone through. In addition to this, I heard the oral evidence of the complainant and of particular witnesses present on behalf of the Employer.

Summary of Complainant’s Case:

The Complainant has worked for the Respondent Employer since 2004. He started out as a General Operative and subsequently in 2010 he applied for and was placed on a Driver’s Panel awaiting a permanent position. His classification is that of “B class” which entitled him to operate vans up to a certain weight but not beyond (reserved for the “A Class” drivers).

Up until 2013 the Complainant had understood that he was next in line for whatever vacancy arose within his depot. For him, this would mean that he would be assigned a particular vehicle and would be expected to operate the same regular early morning shift - commencing either 6am or 8am. As things were, he was not assigned a permanent vehicle and was in fact a “spare” driver (though whether he knew he had this title is debatable) and would have take his chances if one became available on each day he turned in for work.

The Complainant’s preference was for an 8am shift time though the emphasis appears to have been on 6am shifts being allocated.

In the event, the Complainant did believe he was overlooked for what he believed was his natural progression in and around 2013 - in his own depot - when the 8am shift became free and remained unassigned for a significant period of time with up to three workers sharing the van/slot where the Complainant believed the slot was his by reason of his place on the driver’s list.

The complainant was not given the position, and when the driver lists were next published the Complainant was described as “spare” with no prospect of promotion. To make matters worse the Complainant transferred his place of work and found that he had slipped down the list of drivers that would be assigned a permanent van.

In his evidence, the Complainant made a very strong case concerning the repeated disappointment of being overlooked for promotion and in effect said he has been waiting six years on the Driver’s list waiting to be assigned a van and a shift of his of his own.

Summary of Respondent’s Case:

The Respondent very fairly conceded that the Complainant had served his time and that all things being equal that he should probably be next in line for a promotion. The Respondent described ongoing circumstances which appeared to operate against the Complainant though this was never intended. So, for example, Drivers who are already permanent get the vans in advance of the “spare” drivers. The numbers of vans remains inconsistent and if vans are lost the permanent drivers need to be allocated another. There are not enough spare vans to accommodate spare drivers.

The Complainant’s situation becomes more worrisome for him as he was constantly being rebuffed in the internal mechanisms by what he perceives to be cosy arrangements for the swopping of vans and shift and other arrangements all of which seem to operate to keep him out of the loop.

In their Defence the Respondent are able to point to good reason and justification for these apparent anomalies

Findings and Conclusions:

In the course of the hearing it was put to me that the Complainant had been offered to be put onthe payscale appropriate to the permanent driver. This was to be backdated, though the timeframe for same was not agreed.

It has also been suggested that, all things being equal, the complainant is the next person due to be moved from the Spare Driver to the Permanent Driver list in the sense of getting a vehicle assigned for his use. The difficulty is that the Respondent cannot put a time line when such a movement might happen.

In the course of the hearing there was a tentative suggestion that a Mr. DC had recently gone out on grounds of ill-health. It is thought that this is a permanent exit from the workplace which leaves Mr. DC’s van without a permanently assigned driver

Decision:

I am recommending that the Complainant herein, in light of his peculiar circumstances, be moved immediately to the payscale to which he would be entitled if he was a permanent driver. I am further recommending that this pay structure be backdated to the 1^st of January 2016 which is still some three years after the Complainant says he should have been given his promotion. This arrangement should be brought about within 6 weeks of the issuing of this decision.

I am further recommending that as befits the Complainant’s increased salary that the Complainant should be assigned a truck or van of his own and that every effort should be made to ensure that this happens within a reasonable period of time. The Complainant should be kept abreast of any decisions that negatively impact the Respondent‘s ability to provide the Complainant with a van as they become free and/or if they are free.

Dated:   05 July 2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath