FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision No: ADJ-00003201.
BACKGROUND:
2. This case concerns a claim by the Worker that the Employer failed to adhere to proper procedures and policies in transferring him to a new shift/depot. He is seeking a return to the status quo ante and compensation.
The matter was referred to an Adjudication Officer for investigation and recommendation. On 25 May 2017 the Adjudication Officer issued the following recommendation:-
I have considered the submissions of both parties. As regards the agreement made between the parties made on 9 June 2015 which result in the transfer of the Claimant to a different shift, as the main negotiators involved are now retired, it is not possible to ascertain what, if anything, was agreed in regard to the Claimant's status. There is nothing on record.
Having considered the terms of the 1997 Agreement, which deals with such matters, it could only mean that once the Claimant transferred his shift he changed his existing status and was put at the end of the panel on the new shift. Therefore under the existing agreement the Respondent is entitled to transfer the Claimant to another depot unless there is a volunteer prepared to move.
The Union on behalf of the Claimant appealed the Adjudication Officer's Recommendation to the Labour Court 3 July 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 15 September 2017.
The following is the decision of the Court:
DECISION:
The matter before the Court is an appeal by the Claimant of an Adjudication Officer’s Recommendation which found against his claim that when he was moved from one shift to another in July 2015 he lost his yard service/status. This, he claimed, led to the non-recognition of his seniority which had negative implications for him. He sought to be reverted to his previous shift or have his status reinstated and he sought compensation for the damage caused.
The Claimant is employed in the Council’s Waste Management Services, working a seven-over-seven shift based at O’Rahilly Parade Depot off Moore Street prior to July 2015.
The transfer of General Operative staff is covered by the 1997 City Council/Union Restructuring Agreement. It provides that where an employee is moved to a new depot or to a new shift, either voluntarily or at the behest of Management, they lose their seniority/status and enter at the bottom of the panel in their new work location/shift.
The Union told the Court that there have been a number of instances in the past where employees have been moved to allow an investigation take place and then returned to their original depot/shift thereafter with their seniority/status preserved.
The Claimant was transferred in May 2015 following intensive discussions with management which took place on foot of complaints made against the Claimant by a work colleague. Eventually it was agreed that the Claimant would move to a different shift within his own depot. The Union understood from these discussions that the move was for operational reasons and was to be a temporary one. By letter dated 12thApril 2016, when Management confirmed that there were no grounds for imposing disciplinary sanctions against the Claimant, the Union understood that the matter was then closed and he continued to carry out duties appropriate to his yard service/status or position on the panel. However, when new driver panels were provided on 10thMay 2016, it demonstrated that the Claimant had lost his yard service/status. Then on 18thMay 2016, the Claimant was informed that he was being transferred to the Bow Lane Depot as he was at the bottom of the panel. He refused to transfer as he maintained that he was not last in and therefore he submitted that the request was outside of agreed protocols.
A further approach was made to transfer him to Bowe Lane in October 2016 and, when he refused, he was “not started” in his work and taken off the payroll for a period of ten days.
The Council disputed the Union’s view that the Claimant’s move was for operational reasons for a temporary period only. It contended that had the agreement reached between Management and the Union on 9thJune 2015 prior to his transfer intended that the Claimant would retain his yard service/status, it would have said so and there was no such statement contained in the agreement. It stated that the Inspector on the Claimant’s new shift informed his senior Manager that he was applying the rules as usual under the agreement.
The Council accept that the situation which arose in October 2016 could have been handled differently by Management and, following a meeting in November 2016, the Claimant’s pay was restored pending the outcome of this case.
The Council maintained that there was no agreement in place for the Claimant to retain his yard service/status when he moved shift, as to do otherwise would be a breach of the 1997 Agreement and cause others on the panel to be disadvantaged.
Having considered the oral and written submissions of both parties, the Court notes that the Council confirmed in writing on 12thApril 2016 that the investigation into the alleged incident produced no grounds for imposing a disciplinary sanction against the Claimant and accordingly there were no findings of gross misconduct found against him. In such circumstances, the Court is of the view that the Claimant should remain on the shift he is currently on in O’Rahilly Parade Depot and that every effort should be made to ensure that his yard service/status is restored as though he had not changed shifts. This is recommended in full and final settlement of the Claimant’s claims.
The Court notes the variance of opinion between Management and the Convenor over the restoration of his yard service/status and its possible implications for others. Therefore the Court recommends that both parties should endeavour to address this point in a practical and amicable manner.
Accordingly, the Adjudication Officer’s Recommendation is overturned. The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
25 September 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.