Complainant

Respondent

Anonymised Parties

A Chargehand Fitter

A local authority

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-00015835-001

16/11/2017

The respondent is a local authority and in September 2005, the complainant started work as a Chargehand Fitter at the authority’s wastewater treatment plant in Swords. In July 2010, he was promoted to the role of Foreperson Fitter Turner in a plant in Leixlip. The difference in salary is €100 per week.

Following a period of sick leave from November 2011 until April 2012, the complainant returned to work, but reverted to his former job of Chargehand Fitter, on the rate of pay for that job. His complaint is that he should be paid the salary appropriate to the role of Foreperson, and that this salary should be back-dated to when he returned to work from sick leave in April 2012.

Absence from Work and Return to Work

The complainant’s case is that he has a contract of employment which followed from his promotion to the role of Foreperson Fitter Turner in July 2010. He argues that he never agreed to a change in his contract and he should be on the rate of pay appropriate to this job, which is €880 per week.

At the hearing, the complainant said that when he went out sick in November 2011, it was as a result of very severe stress and he was in hospital for a number of weeks. In March 2012, he was informed that his entitlement to payment of his wages while he was out sick was about to run out.   Faced with the prospect of being reduced to the equivalent of social welfare sick pay, he discharged himself from hospital and on March 28th, he attended an appointment with the council’s occupational health consultant. The consultant’s opinion was that he was fit to return to work.

The complainant said that before he went back to work, he looked for reduced hours or “light duties.”   He lives in Drogheda and the HR Department offered him his old job back in Swords. He went back to his old job, but the next day, he was sent to the Malahide treatment plant. Following some concern about his ability to drive certain plant and use heavy machinery, the complainant was seen again by the occupational health consultant.   This doctor contacted the complainant’s GP who prescribed different medication and the complainant returned to work fully from April 26th 2012.

The Complainant’s Position

The complainant’s position is that he never asked to go back to the Chargehand role and in late 2012, when his old job of Foreperson Fitter Turner was advertised, he asked to go back to that job. He was not assigned back to his old job, but continued in the Chargehand role.   He said that he pursued this grievance with his line manager, but nothing came of his efforts.

On his behalf, SIPTU argues that, when he was assigned back to his role as Chargehand Fitter, the employer had an obligation to put in writing the changes to his terms and conditions. It was also argued that as the council had redeployed him, the collective agreement between them and SIPTU provides that there should be no loss of earnings as a result.

Absence from Work and Return to Work

At the hearing, the HR Manager said that, before the complainant returned to work in April 2012, he asked to be allowed to come back Swords, because this would be an easier commute, compared to Leixlip. When the occupational health consultant found that he was fit to return to work, the council agreed to his request to come back to a job that was available in Swords, which was the job of Chargehand Fitter that he had carried out before he was promoted in 2010. The job of Foreperson Fitter Turner in Leixlip was held open until September 2012, in case the complainant decided that he would return to that job.   However, the HR Administrative Officer was clear in her recollection that he didn’t express any interest in returning to that job.

The council’s position is that the complainant requested to return to Swords to his old job and since April 2012, he has been employed as a Chargehand Fitter in Swords / Malahide without any issues arising. The HR Manager said that, in return for five hours’ travel allowance each week, staff are required to travel between the Swords and Malahide plants.

In July 2017, the complainant requested to be appointed again as a Foreperson, relying on the contract that was issued to him in 2010 when he was promoted to that position in the Leixlip plant. A meeting took place at local level on July 17th 2017, and, when no agreement was reached, the parties referred the issue to conciliation. On November 2nd 2017, following a meeting with a conciliation officer at the WRC, no agreement was reached and the matter was then referred for adjudication.

The Council’s Position

The HR personnel who attended the hearing submitted that the complainant worked in the role of Foreperson Fitter for 20 months of his 13-year career with the council and that it is unreasonable to expect to be paid the salary for this role. The HR Manager said that when he returned to work following his sick leave in April 2012, the complainant specifically asked to come back to Swords. The job available was his former job of Chargehand Fitter. Consistent with the medical advice at the time, the council agreed to this request and accommodated the complainant with a transfer to the location he wanted to work at. Their position is that he was happy with this arrangement for five years and worked collaboratively without complaint in accordance with the terms of his original Chargehand contract. He didn’t raise any issue from 2012 to 2017 about his appointment to the role of Chargehand, and, as far as the council is concerned, this demonstrated his satisfaction with the job he took up on his return from sick leave.

In September 2012, when it was open to him to do so, the complainant did not request a return to the job of Foreperson in Leixlip. He has not worked as a Foreperson for more than six years, and even now, he is not saying that he wants to go back to Leixlip as a Foreperson. If he did change his mind and ask to go back to Leixlip, this would create a further problem, as there is just one Foreperson’s job at the plant, and it has been filled since September 2012.

The complainant’s return to the job of Chargehand Fitter was facilitated on the advice of his GP in consultation with the council’s occupational health consultant and was regarded as the best solution at the time, having regard to the complainant’s prolonged absence. The HR personnel who attended the hearing said that, in their view, the arrangement was fair and they consider his claim for the Foreperson’s wages and back-dating of that salary as unreasonable.

I have considered the statements of the complainant and the respondent at the hearing of this dispute. It is evident that in April 2012, when he was contemplating a return to work after his sick leave, the complainant made it clear that he did not wish to go back to his job in Leixlip. He said that he asked to return to “light duties.” While the HR Officer said that there is no written request to this effect, she said that she clearly recalls the complainant asking her if he could return to Swords, as it was easier to get to from his home, compared to Leixlip.   This change is referred to in a letter dated March 29th 2012 in which a member of the HR Department states;

“Dr. Murphy has stated that you are fit to return to work on the 2nd April 2012 at the Swords Treatment Plant.”

The job available in Swords / Malahide was a Chargehand Fitter job, which was the job carried out by the complainant before his promotion in 2010. If the complainant had not wished to be located in Swords in the role of Chargehand Fitter, I am certain that he would have made that known to his manager and the HR Department long before he raised the issue as a grievance in July 2017. I find therefore, that the assignment of the complainant to the job of Chargehand Fitter in Swords / Malahide in April 2012, was a decision which was acceptable to him at the time, and for the following five years, until he raised a grievance about it in July 2017.

The fact that no change was made to the complainant’s contract of employment is of no material significance. The relevant matter is the fact that he carried out the job of Chargehand Fitter in Swords / Malahide from April 2012. In effect, his contract was amended implicitly by the fact that he agreed to carry out a different role in a different place, compared to the role and location stipulated in his contract of 2010.

At the hearing of this dispute, the complainant did not suggest that he wished to return to his job in Leixlip, but simply that he should be paid the rate for the job of Foreperson Fitter Turner. In effect, he claims that he should be paid for a job he gave up in 2012 to take up an easier role in a more convenient location, and he claims that the difference should be back-dated.

On behalf of the complainant, Mr Glynn submitted that there is a collective agreement in place which provides that, where an employee is redeployed by the local authority into a job at a lower grade than their current, job, that there should be no loss of earnings. In my view, this provision does not apply to the complainant in this dispute, as he requested the change and he was not redeployed by the council.

It is my view that the requirement for the respondent to accommodate the complainant’s illness was fulfilled when he was offered the job in Swords / Malahide. I find that nothing turns on the fact that no change was made to the complainant’s contract when he was assigned to that role.   On this basis, I conclude that the complainant has been paid at the appropriate rate of pay since he returned from sick leave in April 2012.

I recommend that no change be made to the complainant’s rate of pay or his terms and conditions of employment as long as he continues to carry out the role of Chargehand Fitter.   If, in the future, a vacancy arises for the job of Foreperson Fitter Turner, if he applies for the job, he should be considered. In the meantime, if the complainant requests a letter confirming his current job title as a Chargehand Fitter in Swords / Malahide, with the rate of pay for this job, the respondent should facilitate this request and the letter should be considered as an amendment of the contract which was issued in July 2010.

Sick leave, redeployment