Complainant

Respondent

Anonymised Parties

General Operative

Local Authority

Representatives

SIPTU

LGMA

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-00032840-001

10/12/2019

The complainant commenced employment with the respondent in 2006. Since 2008 he has worked as a General Operative in the mechanical section of the employer’s service and has been deployed as an acting driver. In 2019 he was transferred out of the mechanical section in 2019 with the loss of €7250 in allowances. He seeks to be returned to that section.

The worker seeks to be returned to the mechanical section of the employer’s service.

The worker was transferred out of the mechanical section in October 2019 and into another section with the loss of allowances payable for work in the mechanical section whereas the work in the current unit carries no such allowances.

This transfer occurred while a collective dispute was on going. A collective dispute enjoys the protection of the grievance procedure which provides for the status quo- in this instance the retention of the worker in the mechanical section- to remain in place while a dispute is ongoing. The employer ignored these provisions.

The workforce was restructured in 2016 as a result of a union – employer agreement. It included an agreement to regularise the long-term acting drivers in the mechanical section but agreed that the complainant’s circumstances were different and that he would not be comprehended by the new arrangements concerning drivers but would be dealt with separately as he was a General Operative deployed as a driver as opposed to being appointed as a driver per se. The employer asked the union to park the worker’s particular issue date while they were discussing the regularisation of the acting drivers

The union contend that there were discussions ongoing concerning the arrangements for this worker. The union wrote to the employer on a number of occasions concerning the need for an agreement as to how the worker would slot into the new arrangements and the pay details. In 2017 the union proposed a confined competition for 2 drivers, all departments, to be based in mechanical section. An alternative proposal was that the worker would move on to another pay grade. The employer largely ignored these approaches. The employer despite these discussions transferred the worker in October 2019. This has resulted in the loss of €7,250.

The employer never advised the union or the worker that the conversion of 2 acting driver posts into full time posts, decided in 2018, would result in the suppression of 2 General Operatives in the mechanical section.

The job of driver for which the worker applied in the confined competition in April 2019 was not confined to the mechanical section.

The worker asks the adjudicator to compensate him for the loss of €7250.

The employer points to the complainant’s contract as a General Operative which allows for transfer within different departments. He was not appointed to the mechanical section.   There was no guarantee that he would be retained in the mechanical section.

His transfer out of the mechanical section came about as a result of the Workforce Plan for outdoor staff agreed to by the unions in 2016. It provided for long term acting (driver)posts to be regularised via confined competitions. The regularisation agreed to did not include General Operatives deployed as acting drivers.

The union wanted 2 additional driver posts for the mechanical section to comprehend the worker and a colleague who was not in receipt of an acting drivers’ allowance. SIPTU were advised that a business case would have to be made for 2 additional posts. Ultimately a business case was considered for two additional drivers as being more beneficial than 2 General Operatives and this case was accepted in late 2018. A confined competition was held for 2 driver positions in the mechanical section in April 2019.

The worker applied but did not attend the interview. The posts were filled by the other General Operative in the mechanical section and an employee from the panel.

The employer refers to the frequency with which employees appointed to acting positions revert to their substantive role. Since the inception of the Workforce Plan at least 121 staff have reverted to their substantive post from their acting posts. Over 50 employees serving between 4- 14 years in their acting posts reverted to their substantive posts.

The employer refers to a number of decisions which acknowledged the employer’s right to return an employee to their substantive role even where the employee incurred a loss of income.

The employer cites LCR 22087 where an employee sought to be returned to an acting post, itself converted to a permanent position for which he had competed unsuccessfully. The court ruled

“the Court is unable to uphold the worker’s claim for appointment on a personal –holder basis to the acting position he held for 12 years. The Workforce Plan agreed between the Union and Employer clearly provides for the regularisation of acting up arrangements by means of a competitive process only. This is consistent with established practice in the local government sector”

The employer also refers to ADJ 00008655, to LCR 21800 (an appeal which upheld AJD 00008655 and LCR20634 all decisions which upheld the employer’s position to return employees to substantive roles in the face of demands near identical to those being made by the worker in the instant case.

I have been asked to recommend the reinstatement of the worker back into the mechanical section. This request is based on the assertion that until an agreement was reached as to how the worker was to fit into the reconfigured services, and at what level of pay, he was to be retained in the mechanical section and not moved out of it. The employer acknowledged that the General Operatives were a separate case deserving of attention but not within the sphere of the Workforce Plan. The union point to the status quo provisions of the grievance procedure as to why he should not have been be moved out of the mechanical section– as he was in October 2019- until an agreement had been reached. The Grievance Procedure provides for continuity of existing arrangements while the grievance is in play. The alleged breach was what led to the submission of this complaint.

The employer states that no collective dispute exists in this instance. The evidence points more to a lapsed dispute as the decision to run a confined competition was made in late 2018 ,the confined competition was held in April 2019, and there was no evidence proffered of an objection having been lodged concerning the plan to hold a confined competition for a post to which the worker could have been appointed, nor to the worker being reassigned in October 2019. The worker applied but chose not to attend the interview. His reasoning was that the driving position would not be confined to the mechanical section. The worker took up the new position in December 2019. The union last corresponded with the respondent in May 2018 seeking a resolution.

I am guided by the decisions cited to me which clearly uphold the employer’s right as per the contract of employment to reassign the employee to his substantive position. The creation of 2 driver positions for which the worker chose not to interview was the stimulus for the reassignment. LCR 22087 dealt with an employee who sought to be returned to an acting post- itself converted to a permanent position -for which he had competed unsuccessfully. The court ruled

“However, the Court is unable to uphold the worker’s claim for appointment on a personal –holder basis to the acting position he held for 12 years.”

I have not been provided with any information distinguishing the worker’s claim to be reassigned back to the mechanical section from those decisions cited to me by the employer.

I do not recommend the reinstatement of the driver in the mechanical section.

However, I do note that the correspondence from the employer, sporadic in nature, holds out the prospect of an arrangement for the General Operatives not comprehended by the Workforce Plan. I accept that the General Operatives, deployed as drivers in the mechanical section were overlooked in the new staffing arrangements agreed in 2016. The correspondence signifies the possibility of an arrangement other than a mere reassignment back to the substantive grade.

The employer referred to a Loss of Earnings Agreement. When asked, the employer stated that they could look at his loss of earnings in October 2020. The worker has suffered a loss of €7600 since October 2019 owing to non- availability of various allowances payable to him on the mechanical section but no longer payable in his current role.

Accordingly, I recommend that the formula used to recompense employees for loss of income be applied to this worker after October 2020 when the necessary period has elapsed to identify loss of earnings relative to 2019. I recommend that any residual matters are dealt with in the in- house union- management fora as I am not persuaded that the internal procedures were exhausted.

I do not recommend the reinstatement of the driver in the mechanical section.

I recommend that the formula used to recompense employees for loss of income be applied to this worker after October 2020 when the necessary period has elapsed to identify loss of earnings relative to 2019.

I recommend that any residual matters are dealt with in the in- house union- management fora.