Complainant

Respondent

Anonymised Parties

A General Operative

A Local Council

Representatives

 Forsa Trade Union

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-00022749-001

22/10/2018

The complainant joined the Council in 1979 as a general operative. A number of years ago, a colleague in a role at the level of assistant staff officer went out sick and he filled in for him in this role. While this job is at a higher salary than the complainant’s role, he has not been paid an acting up allowance. He now claims that he should be appointed to the job and paid retrospectively for acting up for 14 years.

Background to this Dispute

The complainant is a group 2 general operative and in 2006, he applied for an advertised role of driver sampler in the Water and Drainage Division. He was placed second on the panel at that time. In the same year, he was asked to cover for the driver / sampler from the Central Laboratory who went on sick leave, and he has been carrying out the role since, with no additional remuneration.  

At the hearing, Mr Martin said that the difference in pay between the job that the complainant is employed at and the job he is currently doing is €50 per week or around €2,500 per year. He argued that the complainant is well-recognised as the post-holder in respect of all matters, except pay. He drives a company vehicle and has a designated geographic area in which to operate.

Efforts to Resolve the Issue

In June 2018, Mr Martin wrote to the most senior person in the Council’s water laboratory, the Chief Scientific Officer about this matter. This person attended the hearing. She referred the complainant’s case to the human resources department and in October 2018, the complainant’s request to be regularised in the role of water sampler was rejected. Subsequently, by way of resolving this dispute, the Council made an offer to the complainant, but he decided to refer the matter to the WRC in the first instance.

In summary, the complainant argues that he should be appointed to the role of driver / sampler and that he should receive a retrospective payment equivalent to the difference between his salary and the higher grade salary for the past 14 years.  

Employment Grade

Having commenced with the Council in 1979, the complainant was appointed to a general operative role in April 1981, when he reached the age of 18. He was officially transferred from the Water Services Division to the General Laboratory in October 2010. His current pay rate is at the grade of general operative, group 2, and he earns €17.46 per hour.

Background to the Claim to be Paid as a Driver / Sampler

At the hearing, the HR Officer explained that there are two long-term established positions of driver / sampler attached to the Central Laboratory and both roles are occupied. The job is at the clerical / administrative grade of assistant staff officer, grade IV.   He said that the Council’s personnel record shows that, from 2005 until 2007, the complainant worked as a stand-in driver / sampler but he remained an employee of the Water Services Division and worked for that Division when he was not required by the Laboratory.   From 2008 until 2010, he worked for the Central Laboratory and he officially transferred there on October 31st 2010.

The complainant applied for the job of driver / sampler when the role was last advertised in 2006 and he was placed second on the panel on that occasion. Due to the fact that a second vacancy did not arise during the lifetime of the panel, he was not appointed to a role.

The Public Service Agreement 2010 – 2014 (the Croke Park Agreement) provided that, “to facilitate the necessary reduction in numbers of public services, the moratorium on recruitment to and promotion in the Public Service and other employment number control mechanisms will continue to apply…” This moratorium remained in place until 2016. A Circular of the Department of the Environment, Community and Local Government (DoECLG) EL02/2016 delegated to the chief executive officer of the City Council responsibility for employment numbers, but also specified that increases in the numbers in certain grades had to be sanctioned by DoECLG. Point 8 of this circular reiterated that, “the agreed sanctioning process where Irish Water positions is concerned continues to apply and is unaffected by this circular. The HR officer said that the complainant’s job of driver / sampler is related to Irish Water. Also, the terms of the Croke Park Agreement mean that no cost-increasing claims will be considered.

For these reasons, the Council was prevented from appointing a third driver / sampler to the Central Laboratory. They argue that, as there is no vacant position, the complainant was not acting up in the role. Apart from this, the Council has applied the moratorium to acting up positions, as acting up results in an increased cost.

Conclusion

On behalf of the Council, the HR officer argued that the complainant cannot claim retrospection going back 14 years, when he has been doing the relevant duties of the driver / sampler role in the Central Laboratory on a full-time basis only since 2010.

Aside from the restrictions on cost-increasing claims, the Council has no record of the complainant or his union ever seeking to have the issue resolved before they wrote to the Chief Scientific Officer in June 2018.

The HR officer said that the Council has applied to Irish Water for approval to recruit a third driver / sampler. They expect that approval will be granted and the role can be advertised in 2019.   If approval is forthcoming, the complainant may apply for the post.

The Public Service Stability Agreement 2018 – 2020 reiterates the agreement of the public service employers and unions that there will be no cost-increasing claims for improvements in pay or conditions during the period of the Agreement.   The retrospective payment of an acting up allowance would constitute a cost-increasing claim.

Having considered the circumstances in which the complainant commenced in the role of driver / sampler, it is my view that, as he was not officially appointed to his job in the Central Laboratory until 2010, the issue of retrospection prior to that date is not a realistic proposition. I accept that, since 2010, he has carried out the role of driver / sampler on a full-time basis. I also accept that this role is a clerical / administrative grade and is higher than his current grade of group 2 general operative. The parties agreed that the difference in salary is around €2,500 per year.

The complainant’s move to the Central Laboratory and his assignment to the job of driver / sampler coincides with a period of financial restrictions across the public sector. Vacancies were not filled, staff acted up, increases were not paid and some had to accept pay reductions. Acknowledging all of this, at the hearing into this matter, it was apparent that the Council is open to seeking a solution and to regularising the complainant’s position.

Approval is expected from Irish Water with regard to sanction for the Council to recruit a third permanent driver / sampler. I recommend that the complainant should apply for this role when it is advertised.

Regarding retrospection, I recommend that, in full and final settlement of his claim, the Council should pay the complainant €9,000. This amount is to be paid as income, subject to normal deductions of tax, PRSI and USC.

Retrospection, acting-up payment