Complainant

Respondent

Anonymised Parties

Driver

Local Authority

Representatives

Pat O'Donoghue SIPTU

Keith Irvine 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-00027961-001

25/04/2019

This case is a dispute arising from the filling of two driver posts in the Local Authority. The claim centres on the application of seniority as a criterion for filling such posts.

The employee has thirty-seven years of service as a driver. In 2011 and 2012 he was a relief driver for salting routes. Following a privatisation of one route, two drivers were displaced and the employee in this case had to stand aside as the other drivers had longer service as ‘Category 1’ drivers. The employee points to the use of seniority as a deciding factor in the earlier situation. In 2018 two vacancies for Category 1 drivers arose. The employee approached management, and, on their advice, he lodged an expression of interest for one of the two posts. He was not appointed to the position and contends that he should have been, based on seniority and previous agreement with his union. The criteria for filling the posts were raised by his union at meetings with management in November 2018 and April 2019. The employee felt very frustrated and disappointed at the failure to apply the seniority factor as had been applied to him previously and which he contends was in place with the agreement of the Union. In relation to the distance from home which the employer had explained was the deciding factor when the issue was discussed with him and also with the union, the employee pointed out that he had his lorry at home while the appointed driver had further to travel to the base. By way of a resolution of the dispute, the employee sought a decision as to whether the employer was in breach of custom and practice in filling the posts in this instance. Compensation was sought on the basis that he lost earnings of around 600 euro in the winter 18/19 and perhaps 700 euro so far this winter and this would be ongoing.

The employer pointed to the fact that this was an assignment of work in the case of the employee in dispute and not an application for a vacancy as such. When deciding between the interested employees several considerations led to the decision: transfer requests from existing salt drivers on file; the expression of interest panel in place; health and safety assessment-taking into account where the drivers’ homes were positioned and roads to be travelled. When this last factor was used, the employee in dispute lived furthest away from the two routes which were to be assigned. A map was presented showing the locations of the three employees’ homes, the routes to be covered and relative distances. These factors were used in a previous assignment of routes under a reorganisation of routes in 2013/14. At meetings with the union in November 2018 and again in April 2019 the employer set out the criteria used. Reference was made by the union to an agreement in 2012 which referenced seniority and experience. However, while there is correspondence on record in 2012, there is nothing which confirms the unions acceptance of these criteria and no agreement was reached in this regard. The employer conceded they had overlooked the factor of the employee in this dispute having his lorry at his home.

When the distance factors are assessed correctly-the actual difference in distance between one of the successful applicants and the employee in this dispute is two km. Given his experience and service, deciding to reject the expression of interest by the employee in this instance could hardly be described as a risk issue based on a difference of two km. Had the management correctly assessed the situation at the time, experience and seniority should have been taken into account, in which case the result may have been different. The fact that the employee in this case was previously displaced from a category 1 position experience should have come into play alongside his service in weighing up all the factors. Regarding the existence of a collective agreement, there is really nothing tangible or clear-cut on file. Reference was made to correspondence in June 2012 which refers to experience supplementing the selection process and seniority not being abandoned. SIPTU are said not to have accepted that position. However, nothing was produced which demonstrated SIPTU had agreed to the addition of health and safety criteria, including  home   location as factor in the filling of all driver vacancies to the   exclusion of seniority and experience which were omitted in their entirety from the factors set out in the employer’s submission.

In all the circumstances the employee in this case is entitled to feel hard done by. The information presented is insufficient to uphold his claim that the employer breached a collective agreement, but they certainly varied well recognised factors in this sector and this employment ,no doubt. The factors to be used in the future are really a matter for the union to pursue with a view to ensuring that there are agreed criteria for the filling of vacancies in the future.

I recommend that the employer pay the employee in this case €1000 in pay in full and final settlement of this dispute on the basis that they did not apply established and new factors to his application correctly and fairly.

The matter of the factors for future use are for discussion at collective bargaining.

Filling of vacancy/breach of collective agreement.