ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00004736
Parties:
| Complainant | Respondent |
Parties | A Driver | A Local Authority |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00006598-001 | 23/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006 | CA-00006598-002 | 23/08/2016 |
The complaint under the Employees (Provision of Information and Consultation )Act 2006 was withdrawn at the commencement of the hearing.
Further submissions were received following the hearing with the final submission received from the respondent on the 18th.May 2017.
Date of Adjudication Hearing: 15/11/2016
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, nd/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant has been successful in a recent competition for the position of driver but submits that he has been treated less favourably than his colleagues who are allowed to take their lorry home with them at the end f each working day – the claimant is required to park his lorry at a designated depot and make his own way to and from work.The claimant contends that this treatment is motivated by his trade union activities – the claimant is a long standing Shop Steward with SIPTU. The claimant was employed as a General Operative from 2000 to 2010 when he was promoted to the position of ganger.He has been undertaking driving duties since 2011. The claimant had processed an earlier grievance through the Rights Commissioner service in 2014 – his complaint related to payment for driving duties and his complaint was upheld – the claimant believed that he was being victimised for his trade union activities at that time. In early 2016, the claimant was successful in a permanent competition for Driver – he was second on the panel and was required to move locations to take up the post.On taking up duty the claimant was shocked to learn that unlike his colleague drivers he was required to park the lorry at a designated location at night and find his own way to and from work.It was submitted that the claimant was the only driver who was precluded from taking the lorry home at close of business. The claimant processed his grievance with the assistance of his union – unsuccessfully. The claimant submitted that he had a legitimate expectation of taking the lorry home at night based on :- All other drivers employed by the respondent are permitted to do so; The other 2 drivers on the claimant’s panel are allowed do so ; When the claimant was a relief driver , prior to securing his permanent post , the claimant was allowed to take the lorry home – over a 5 year period; No reference was made with respect to the job application and contract of the requirement to park the lorry at a depot – arising from this requirement the claimant incurs a 118km round trip every day costing €70 per week. The claimant believes that this treatment is related to his trade union activities – in early 2016 , the CEO of the Local Authority wrote to SIPTU management seeking to have the claimant and a colleague removed as Shop Stewards along with their Trade Union Official. The union asked that the claimant be treated the same as his colleagues – that he be allowed bring the lorry home and that he be reimbursed for the loss incurred and compensated for the unfair treatment. |
Summary of Respondent’s Case:
It was advanced that the claimant is no longer working in the operational area in which he resides; The respondent denied the allegation of unfair treatment and contended that the claimant’s contract of employment provided as follows: “…the lorry provided is for the purposes of carrying out the duties associated with the position of lorry driver.It may not be used outside the hours of work and may not be used for personal purposes”. It was submitted that there was no reference either in the contract or the particulars to the driver retaining an entitlement to travel to and from work.It was contended that the 60 mile round trip involving the use of the lorry for transport to and from home cost €13,504 per annum and that this benefit would be a cost the Council simply cannot afford.It was advanced that there is no operational imperative that requires the driver to use his vehicle to travel to and from work.It was further submitted that the Revenue Commissioners require that any such use would be subject to benefit in kind payments. It was submitted that at the beginning of 2016 , the Council discontinued the practise of lorry drivers using their vehicles to travel to and from work for newly appointed drivers on foot of the financial burden for the Council.It was submitted that when the claimant operated as relief driver , his base was located just 4 miles from his home.It was submitted that the Council intends to eradicate the practise of taking home any council vehicles. The respondent vehemently denied any unfair treatment of the claimant because of his trade union activities. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
Recommendation
In follow in submissions post hearing , I endeavoured to establish the facts in relation to the assertions by the union regarding the claimant being the sole recipient of this allegedly unfair treatment by the respondent. Several submissions were made on this matter.Ultimately , the following has emerged –
With the exception of a small number of drivers who have been disciplined by the respondent and in respect of whom the disciplinary sanction involved making their own arrangements to travel to and from the Council depots , the claimant is the only driver who is precluded from bringing his lorry home.Both parties have confirmed their acceptance that the reference to personal use in vehicles in the contract of employment did not refer to driving the lorry home.Given these circumstances I find the claimant had a legitimate expectation that the arrangements that applied when he was a locum driver would continue to apply on his permanent employment.
I acknowledge that the claimant is convinced that his less favourable treatment is related to his trade union activity and the correspondence from the CEO – submitted in evidence - would certainly lead one to believe that there are strained relations between the union and the respondent.In this regard, I recommend that both parties agree the appointment of an external mediator with a view to assisting them in restoring a harmonious working relationship.
I am satisfied on the basis of the evidence submitted by the parties that the claimant’s assertion of unfair treatment is well founded – However I cannot ignore the compelling arguments advanced by the respondent with respect to the costs in accommodating the claimant’s claim to drive his lorry home in light of the considerable distance between the claimant’s home and his depot.In the circumstances I am recommending in full and final settlement of this dispute that pending any overall collective agreement about travel arrangements into the future , the respondent facilitate the claimant in travelling to work in the Council van that is parked at his home .This arrangement should continue until such time as a new collective agreement is reached that will have equality of application for all drivers.I am further recommending that the respondent pay the claimant €4,000 exgratia compensatory payment to cover the loss incurred since he was appointed a permanent driver.
Dated: 07 June 2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea