FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WICKLOW COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Recommendation No: ADJ00005657 CA-00007853-001
BACKGROUND:
2. This dispute concerns the Worker's claim that the Employer has failed to apply the proper grade in relation to his duties and levels of responsibility. This dispute was referred to and Adjudication Officer for investigation and recommendation. On the 11th July 2017, the Adjudicator issued the following Recommendation:-
"Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. For the above stated reasons I recommend that the Complainant should await the outcome of the review of cemeteries in this county, which should address his position. I recommend that this claim for regrading fails."
On the 18 August, 2017, the Employee appealed the Adjudication Officer'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 20 October, 2017.
UNION'S ARGUMENTS:
- The Claimant carries out duties of the Cemetery Registrar which are not carried out by Cemetery Caretakers.
- LCR7971 states that there is a "...unique affinity of Bray Urban District Council to Dublin County Council and Dublin Corporation as regards working conditions..." therefore the Workers grading is related to the person in charge of Shanganagh Cemetery which is under the responsibility of Dun Laoighaire Rathdown County Council.
- The Worker's duties and responsibilities are more in line with the Craft Foreman grade than his current grade of Caretaker Grade 5.
COMPANY'S ARGUMENTS: - Regrading is precluded under the Public Service Agreement.
- LCR7971 is related specifically to travel rates and all three of the entities that were referenced in the recommendation no longer exist.
- The level of activity of the Cemetery where the Worker is employed is one sixth of Shanganagh Cemetery and therefore, Shanganagh Cemetery is not a suitable comparator.
The following is the Decision of the Court:
DECISION:
This is an appeal by the Union on behalf of a worker of an Adjudication Officer’s Recommendation in relation to the regrading of his existing post from its existing rate to the equivalent of a Craft Foreman’s rate. The Adjudication Officer did not uphold the Complaint.
The Union’s position is that the worker had been carrying out duties of a higher responsibility since 2008 and that he should be paid what they believe to be the appropriate rate for the job back to that date. They have identified the Craft Foreman rate as the appropriate rate. They are relying on a review which was carried out in 2011 to support their claim. They believe the review clearly shows that certain duties carried out by the worker in relation to registrar duties are not normal duties of his grade and should attract higher pay. In support of this contention they provided some documents issued by the Council identifying the worker as the appropriate person to contact. They argued that the number of internments should not be the deciding factor in identifying the appropriate rate of pay. It is their position that the review referenced above recommended that his application for re-grading be dealt with as soon as possible and that management have failed to implement same.
The Employer’s representative advised that they have engaged with the Union regarding a review of operations in this specific area and not just the workers role however the implementation of that review is on hold pending the outcome of this appeal. The Employer indicated that if the worker was successful in his claim that any increase awarded would have to be factored in to his salary if as a result of the overall review he was subject to redeployment. They believe that the original review that the worker is relying on was not a proper job evaluation and that no claim for a job evaluation was ever put forward. They do not accept that the review suggested he should be aligned with the Craft foreman rate as this grade is limited to grades in the craft stream. The Employer did not have a list of duties currently been carried out by the worker and did not dispute the documents identifying the worker as a contact person for certain duties.
In the course of the hearing the Union drew the Court’s attention to an advertisement the employer had placed during the summer in a local paper which set out a pay range for the duties the worker was carrying out. They had included a copy of the advertisement as an appendix to their submission. The Employer disputed the fact that the worker was carrying out the full range of duties referred to but could not substantiate this.
The Court having read the submissions of both parties and listened to the oral submissions made on the day notes that it is clear that the worker is performing a number of duties at his location that are beyond the role he currently holds. However the Court cannot accept that the review the Union is relying on constituted a proper job evaluation. In those circumstances the Court recommends the payment to the worker of an allowance in the nature of pay to the value of €3,000 euro per annum with effect from the 15thJuly 2015 the date his claim was lodged with the WRC. The Court notes the Employer’s commitment to include such a payment in any salary assimilation that may arise from any redeployment. This allowance is on a personal to holder basis only.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
1 November 2017______________________
JDDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.