LCR22240

FULL RECOMMENDATION

CD/20/114
ADJ-00020172 CA-00026705-001

DECISIONNO.LCR22240

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

CARLOW COUNTY COUNCIL
(REPRESENTED BY LGMA)

- AND -

A WORKER
(REPRESENTED BY FORSA TRADE UNION)

DIVISION :

Chairman:	Ms Jenkinson
Employer Member:	Ms Connolly
Worker Member:	Mr Bell

SUBJECT:

1.Restoration of a Dual Duties Allowance payment.

BACKGROUND:

2.This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 4th March, 2020 the Adjudication Officer issued the following Recommendation: -

i.50% of the allowance concerned ( or its cash equivalent) be paid to the Worker concerned for the period from January 2017 to December 2019.
ii.The 50% payment to continue from January 2020 forward until such time as the local Industrial Relations exercise including the expert job evaluation/regrading assistance of the IPA, if required, referred to above, is concluded.
iii.A deadline of 31st of March 2021 to be put on this process.
iv.The balance of the Allowance i.e. the remaining 50%, can be considered as in Irish" Faoi Bhreithniu" - (under consideration) until the discussions conclude.
v.This Recommendation is strictly limited to the facts of this case and can have no bearing on any other cases or circumstances in this or any other Local Authority.

The is a joint appeal of 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 the 22^ndJuly 2020.

The Claimant has been employed as a Clerk of Works with the Council since 1999.

In 2013, he was assigned responsibility for Housing Maintenance for Carlow Town and County.

InOctober, 2014, a ‘Dual Duties Allowance’ payment of €4,122 per annum, was approved for payment to the Claimant with an effective start date of 11^thNovember 2013.

On 31^stDecember 2016 the ‘Dual Duties Allowance’ ceased.

UNION'S ARGUMENTS:

The Claimant has continued to carry out the additional duties of the post as outlinedabove.

The workload hasincreasedfrom2016onwards.The capital spends in housing increased from €1.2m in 2013 to €24.7m in 2019.The housing stock numbers increased from 1595 in 2013 to 1870in2020.

Council management did not respond to the Worker or the Union in relation to the rationale as to why the allowance was terminated.

COMPANY'S ARGUMENTS:

The retirement of the Senior Clerk of Works in April 2013 left the Council with only one Clerk of Works and limited support in relation to housing maintenance and so without the ability at that time to recruit additional resources it sought to financially recognise (via a dual duty allowance) the contribution of the Claimant.

In 2016 approval had still not been provided to make any payments to the Claimant and the Council recruited additional resources in the form of an Executive Engineer and an Executive Technician to support housing maintenance

With these additional resources in place the Council approved the payment of the Dual Duties Allowance, from the 11^thNovember 2013 to 31^stDecember 2016 in recognition of the extra work undertaken by the Claimant and not as a permanent allowance or an increase to a higher grade pay.

DECISION:

This is a joint appeal against the Recommendation of an Adjudication Officer Adj-00020172 CA-00026705-001 in a claim by an employee employed by the Council under the Industrial Relations Act, 1969. The Union on behalf of the Claimant, employed as a Clerk of Works in the Council’s Housing Maintenance Department, sought the restoration of a Dual Duties Allowance payment which was paid for the period from 11th November 2013 to 31st December 2016 for extra work undertaken due to the retirement of four Clerk of Works in the Housing Department over a number of years. The Adjudication Officer recommended that the allowance should partially be restored, and a job evaluation exercise should be conducted to establish if the Claimant’s post should be regraded. Both parties appealed the Recommendation.

The Union submitted that the allowance should be restored as the extra works involved continues to this day and has increased from 2016 onwards. It disputed the Council’s contention that the extra staffing resources which were deployed by the Council have resulted in less responsibilities and workload for the Claimant. It argued that the abolition of a “Dual Duties Allowance” as per Circular E.L.06/2012 was not put forward as an argument by the Council, prior to the Adjudication Officer’s hearing.

Management stated that the allowance was abolished in 2012 under Circular E.L. 06/2012 and no longer exists. Furthermore, it argued that the recommendation to carry out a job evaluation/regrading of the Claimant’s role was inappropriate as there was no other role/grade to evaluate it against. Management stated that the Claimant took on extra responsibility from 2013 until 2016 when the Council amalgamated Town and County functional areas, this amalgamation occurred around the same time as the retirement of the ‘Senior’ Clerk of Works (graded as a Clerk of Works). The amalgamation involved a much wider region and responsibility for the Claimant and as a result of the moratorium on recruitment in the public sector, he had limited staffing support. Therefore, in recognition of his contribution and the resulting saving to the Council, a business case was made by management that he should be paid the Dual Duties Allowance. Management’s recommendation was approved in 2016 as once off recognition payment to cover the period from November 2013 until the end of December 2016, when the Council was prevented by the moratorium from increasing its staffing resources. Management stated that in 2016 the Council recruited additional staffing in the form of an Executive Engineer and an Executive Technician to support housing maintenance, therefore the payment ceased.

The Court has given careful consideration to the written and oral submissions made by both parties. The Court notes that the approval for payment of the allowance was made following a business case having been made out which accepted that the Claimant had taken on extra work and due to the retirement of other Clerk of Works in the Housing Department. While the payment approved in 2016 was for the period from 11^thNovember 2013 until 31^stDecember 2016, it did not suggest it was a once off payment, similar to that paid to others who worked on specific projects.

The Court is not satisfied that sufficient information has been put forward to suggest that there has been a diminution in that workload/responsibilities carried out by the Claimant since the end of December 2016. Management have indicated that there will be a change to the workload in the near future which may lessen the impact on the volume of work/responsibilities required of the Claimant for the future. On that basis it is difficult to see how the allowance ceased on 31^stDecember 2016.

Therefore, the Court is of the view that the allowance should have continued to be paid to the Claimant and recommends that it should be reinstated retrospectively to 1^stJanuary 2017 up to the date of this Decision, at which stage a business case should be conducted in light of the proposed new changes as outlined by the Council at the meeting on 23^rdJune 2020, see Appendix 7 of the Union’s submission. The business case should be concluded within a six-month timeframe from the date of this Decision.

Accordingly, the Recommendation of the Adjudication Officer is varied, and the Union’s appeal succeeds.

The Court so Decides.

	Signed on behalf of the Labour Court

	Caroline Jenkinson
NJ	______________________
04 AUGUST 2020	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Noel Jordan, Court Secretary.