Complainant

Respondent

Anonymised Parties

A Ganger

A Local Authority

Representatives

Oliver McDonagh SIPTU

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-00010823-001

13/04/2017

The Complainant commenced employment with the Respondent in 1978.     This dispute was the subject of two hearings in the WRC. The first, which took place on 2nd August 2017, was adjourned to allow for local negotiations. A resolution was not forthcoming at local level and a second hearing took place on 22nd November 2017.

In August 2015, the Complainant completed an interview for the position of Assistant Foreman of Works (AFOW) with the Respondent. The Complainant informed the board that he would not be able accept the post if it involved a loss of earnings.

On 23rd November 2015 HR rang the Complainant offering him the job in Depot A. When the Complainant enquired about his allowances he was told that he would lose them and that there was no overtime with the post. The Complainant calculated the loss of allowances and overtime would amount to between €20,000 to €25,000 per annum; in the circumstances, he turned down the offer.

Within weeks of the Complainant turning down the offer the job was offered to another colleague on an acting basis and the new incumbent was allowed to keep all his existing allowances. The Complainant later learned that allowances had been red circled for promotional posts since 2009.

The Complainant became ill around this time and was unable to peruse the matter until 2016. When he did process a grievance, the Complainant was told that it had no merit.

In February 2017, the Complainant's union wrote to the employer saying that the post had become vacant in Depot A and that the Complainant should be installed immediately.  

The Complainant was offered an AFOW post but in a different depot, Depot B, which, he had to turn down because of its location and due to his ill health. The employer said it was usual for employees to change depots after promotion.

The Complainant believes that the difficulties he has encountered in taking up an AFOW role are due to his employer's mismanagement.   Notwithstanding that the Complainant appreciates that the post he had wanted is now filled.

The Complainant believes that he should be offered the post of AFOW in Depot A.

In October 2016, the Complainant made a complaint to HR under the Grievance Policy in relation to the circumstances concerning an offer of a promotional post of AFOW made to him in November 2015 which he refused.

On investigation, the HR manager discovered that in November 2015 when the Complainant was offered the promotion the matter was subject to on-going industrial relations discussions with the SIPTU concerning the red circling of allowances to current post holders. According to the Respondent it was not possible at that time, to make a guarantee that these allowances could be retained on a red circle basis pending the outcome of these negotiations. The Complainant was advised of this by local management at the time and this was factually correct.

In January 2017, local management offered the Complainant the post of AFOW in a depot, Depot B; this offer was made to redress the issue raised in the Complainant's grievance relating to this matter.

It is the Respondent's position that the Complainant has been offered the post of AFOW on more than one occasion and that he has turned down the offers every time. It is not possible to offer the post to the Complainant as the post has been filled.

It remains the Respondent's position that the assignment of staff to various work locations and Departments remains the prerogative of the Director of Service with overall responsibility for the management and function for same.

Notwithstanding its desire to resolve this matter amicably the Respondent believes it has been as flexible as possible in its approach to this matter.

The long-service and loyalty of the Complainant was acknowledged by the Respondent at the hearings.

The Respondent also acknowledged that, through no fault of its own, there was some ambiguity and a lack of information surrounding the retention of various allowances when the Complainant was first offered the post of AFOW in November 2015.

The Respondent cannot now offer the Complainant the post as it has been filled some time ago.

Considering this acknowledged ambiguity and the unique circumstances which pertain to this case I recommend a special, once off ex-gratia payment of €5,000 should be paid to the Complainant. This payment is personal to the Complainant in recognition of the unique difficulties he encountered in this episode and it does not set a precedent for any other cases.

Candidate, promotion,