ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00023819
Parties:
| Employee | Respondent |
Anonymised Parties | Building Maintenance Supervisor | Third Level Institute |
Representatives | Robert Stacey of Unite The Union | Managers |
Complaint(s):
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-00030235-001 | 14/08/2019 |
Date of Adjudication Hearing: 17/12/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concern a Building Maintenance Supervisor and the proposal by the Institute to remove a Supervision Allowance of 12.5% from his Salary. |
1: Summary of Employee’s Case:
The Employee commenced with the Institute in 2003 as a Caretaker. In November 2011 he was appointed to the role of Building Maintenance Supervisor. He has continued in this role since that date. The Institute has, in the interim, allegedly as part of the Government Employment Control Framework, changed the nature of the Security and Caretaking functions. It is now a Contracted-Out function save for the employee in this claim. The Employee has at all times being more than willing to carry out all his functions as originally described in his job description/contract of employment dating from the 2nd February 2012. The original contract was described as a Temporary Fixed Term Contract due to expire on the 23rd November 2012. On the passing of this date in November 2012 no contact was made by the Institute and the contract de facto remained in place over the succeeding years. The position carries a 12.5% Supervisory Allowance which continues to be paid. The Institute informed the Employee in March 2019 of their intention to withdraw the allowance. It remains in place pending the outcome of these WRC proceedings. The Union position was that the Employee was appointed to the Building Maintenance Supervisor post, (including the Supervision allowance of 12.5%) on a fixed term, for one year, in 2011. The ending of the fixed term was not marked in any way and the situation was let run for almost 9 years. The changes in the Building Management/Facilities/Estates Department staffing and functions over the intervening years were not of the Employees making. For the Employer to now seek to remove the allowance is grossly unfair. |
2: Summary of Employer’s Case:
The Institute put the majority of the Facilities /Estates function out to competitive tender in 2012. A residue of Directly employed staff remained, approximately four in number, who were supervised by the Employee. With the passage of time the last of the directly employed staff retired in August 2017. The Employee, since that date, has no staff to supervise. It is accepted that the Outsourced Contractor supervises its own staff. Accordingly, the payment of a Supervision Allowance to the Employee now has no rationale. The Employee was offered the Standard Public Service Compensation payment of 18 months value of the allowance in March 2019. This is a fair and reasonable offer and should be Recommended for acceptance. |
3: Findings and Conclusions:
This case comes under the Industrial Relations Act, 1969. The Adjudicator is asked to recommend a fair and reasonable settlement. The Institute since 2012 has achieved a virtual complete change over in its Caretaking, now called Portering and Cleaning Staff, from Direct employment to Contact employment. The Employee is now effectively the last of what could be called the “Legacy” pre-2012 Directly employed Staff. His position is now an anomaly with all the HR difficulties that give rises to. Realistically he has been left without any meaningful role. In most major employments he would now be a candidate for, in most cases, straight forward Redundancy. The Supervision Allowance of 12.5% has been paid for some 8 full years. To raise the issue of its removal at this stage is hard to justify – time has passed, and the allowance is now part of his renumeration. I do not think this decision can be justified on the grounds of basic fairness unless a realistic alternative job/role can be offered. However, in evidence it became clear that the employee had declined an offer of an alternative post in the Institute – a Technical Assistant. It was suggested that there would have been no loss of income by accepting this transfer. Accordingly, having heard the Oral evidence and considered the Written submissions, I recommend as follows. 1. The Employee retain the Allowance on a personal red Circle basis until the end of April 2021 – effectively an extension of 12 months from the date of this Recommendation. 2. In the interim period from the date of this Recommendation to the end of April 2021 the Institute, via its HR Department, find a meaningful role for the Employee. 3. The rate of pay for the new, as yet unspecified but suitable role, to be the Employee’s existing rate inclusive of the Allowance. 4. The Employee should be completely flexible and accept a new role without unnecessary reservations. 5. If by the 1st May 2021 no new role has been found or the Employee has declined a reasonable offer of a new position the Supervision allowance lapses. 6. On the 1st May 2021 the Employee to be offered Voluntary Severance or Early Retirement on the Red Circle rate of Pay with the Standard Buy out allowance, (calculated on the basis of service from 2011 to 2019 i.e. as set out in the Institute’s letter of the 16th April 2019) included as part of a Severance Package. |
4: Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. The Recommendation is as set out below. 1. The Employee retain the Allowance on a personal red Circle basis until the end of April 2021 – effectively an extension of 12 months from the date of this Recommendation. 2. In the interim period from the date of this Recommendation to the end of April 2021 the Institute, via its HR Department, find a meaningful role for the Employee. 3. The rate of pay for the new, as yet unspecified but suitable role, to be the Employee’s existing rate inclusive of the Allowance. 4. The Employee should be completely flexible and accept a new role without unnecessary reservations. 5. If by the 1st May 2021 no new role has been found or the Employee has declined a reasonable offer of a new position the Supervision allowance lapses. 6. On the 1st May 2021 the Employee to be offered Voluntary Severance or Early Retirement on the Red Circle rate of Pay with the Standard Buy out allowance, (calculated on the basis of service from 2011 to 2019 i.e. as set out in the Institute’s letter of the 16th April 2019) included as part of a Severance Package. |
Dated: 18th March 2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
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