Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

Ger Malone SIPTU

N/A

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-00033677-001

09/01/2020

The union submitted as follows:

Our cases today relate to our member not securing the seasonal gritting position in the 2018/2019 season and the 2019/2020 season

Employment Detail

The complainant commenced employment with the respondent on October 11th 2006. He is employed as a Driver B in the Machinery Yard in a large town in the Southeast.

Background

Each year from October to the following April there are 10 operators required to operate 5 Winter Maintenance Trucks which are used to grit roads with salt when necessary during the winter months. There are 2 operators assigned to each Truck, Driver 1 and Driver 2, each rotating, i.e Driver 1 attends today/night and Driver 2 does the next time. There is also a list of relief drivers who are called when neither Driver 1 or 2 are available and that is also done on a rotational basis. There are 5 main routes.

The positions have traditionally been given to the most senior driver and they hold their place from season to season.

In the 2017/2018 the Permanent operator assigned to the Regional route Mr. O’M stepped aside and the claimant was given the position

Another operator Mr V.S who was assigned to the E route also stepped aside as he was working in the Garage. Mr A was given that position

The operator assigned Mr M.D the NR area because the G operator retired. Mr P.F. was given that position

The claimant 2006, Mr. A.H. 2007, Mr.PF 2009 carried out those routes during 2017

In October 2018, Mr O M retired so the claimant who is the SIPTU Shop Steward in the Machinery Yard, along with the Deputy Shop Steward, Mr A.H. approached the Engineer Mr HR requesting that the position be put on the Board to invite expressions of interest as it had been agreed with HR and SIPTU in July 2017 that all vehicle that became available would go on the board.

The claimant was the Shop Steward and had been involved in the concluding of the agreement that all vehicles had to go on the board.

The Regional Truck route was advertised on the board and 6 operators expressed their interest.

On the 26th October Mr R sent a text to the claimant and 4 of the others that expressed interest which stated “Gents, Many thanks for your interest and applications for the vacant position on the Regional Salt Gritter that was advertised on the drivers board. Having considered all 6 applicants the successful candidate is Mr.PF. will take up the position with immediate effect which means that the N R Gritter route that PF was on will, for the time being, be covered by the Relief Driver Rota system”

On November 1st the claimant lodged a formal grievance regarding his failure to secure the position.

On November 4th, 2018, the claimant, the County Shop Steward Mr JS and the Deputy S/S Mr A.H attended a meeting with Mr R and the General Services Supervisor Mr T.B.

Mr.JS questioned why junior men were being trained before senior men and was told by Mr R that it was being done to spread and share the overtime and relayed what type of fixed overtime various men had.

At that meeting the claimant questioned why he was not appointed as he was the senior driver. Mr R contended that seniority was conceded by the former SIPTU Official Mr MW with the former HR Officer Mr M’O’R. This was strongly refuted by the County Shop Steward, the claimant and Mr A.H. Mr JS asked for a copy of that agreement to which Mr R said he did not have a copy. Mr JS replied that was because no such agreement existed.

The claimant then pointed out a recent scenario whereby a Patcher Vehicle was put up on the board and given to the Senior man. Mr R disagreed and said that that man was losing work and he put his name into a hat.

The County Shop Steward reiterated that “Seniority was the cornerstone for selection for vehicles and gritting”.

Mr R repeated that Mr.MW conceded seniority and that he had many talks with the former HR Officer who had told him that trucks can be allocated for a variety of reasons, such as seniority or putting names in a hat but seniority was not the ruling reason and that seniority only applied in 2 cases, redeployment and redundancy.

The claimant rejected Mr R’s responses and progressed his complaints to the next stage. Mr A.D. heard the grievances on November 29th, 2018.

At that meeting the County Shop Steward Mr JS sought a copy of the agreement that Mr R had contended existed between SIPTU and HR.

The Shop Steward raised issues with junior men being trained for the gritters and they only there a few months. Mr D suggested that it was probably to ensure that overtime was shared.

Mr D issued his response, in that he concluded

1)    Mr PF had been a Permanent Driver on the N R Truck since the winter of 2017/2018 and the claimant was a Temporary Driver on the Regional route since 2017/2018

2)    Cited the letter from HR to former SIPTU Official Mr Gerry Flanagan relating to allocation of vehicles. In particular “The Technical Services Supervisor will allocate the vehicle based on his assessment of the suitability of the interested parties and having regard to overall organisational and operational requirements. Mr R had applied that”.

3)    Mr R had “redeployed” a “permanent” driver

4)    Mr R was aware that Mr PF was trained before the claimant and took that into consideration

5)    Acknowledged the claimant was more senior commencing in 2006 and Mr.PF commenced in 2009 and stated “while seniority is to be considered it is not the deciding factor”

6)    That the analysis of overtime demonstrates that it was allocated fairly and evenly across permanent, temporary and relief and noted that permanent drivers have first refusal.

The claimant rejected and progressed to Mr ND as follows

“In response to why the outcome provided by A.D is not satisfactory.

1)    P F was never a Permanent Driver on the NR s gritting Lorry as T C the primary driver is on a different system to the rest of the permanent drivers.

There was never a second permanent driver appointed to the NR lorry at any time

There were three gritting Lorries available for the season 2017-2018

1 Regional: Mr. O’M stepped aside

2 E : V.S had not gone out on the lorry for two seasons and he was only covering for A.F. who was in the office

VS is working in the Garage Full time now

3N R : Mr. D moved to the G Lorry after Mr. JH retired

A.H., the claimant & Mr. P.F. were put on these Lorries as cover and no one was made permanent

2)    In relation to allocating driving posts, the letter from HR to SIPTU dated 11th July under the heading “Redeployment” states “without prejudice to the existing agreement in relation to redeployment” that was relating to the existing agreement which is that overall service/seniority is the determining factor where all else is equal. That has always been the accepted, established practice in the local authority. It was stated previously that Mr. MW and Mr. MO’R agreed different by Mr.HR, I disagreed with that as did the Shop Steward, when we requested that agreement, it was not produced, nor will it be because it has never been changed and the only way that it could be changed is with agreement by the SIPTU members and it never was.

3)     

That principle of LIFO was what was applied in one of the National Agreements under the heading of redeployment, in the case of the Organisation not having volunteers that the Last In would be the First Out. The principle acknowledges and recognises that those who have been there longest have been contributing longer and for that reason they are given preference to stay in the particular post. Likewise, in the selection for a desirable post, where all else is equal, the determining factor has to be seniority. That principle has been affirmed by the Labour Court many times.

The extract cited by AD in paragraph 2, is taken out of context, that paragraph refers to the allocation of a particular “vehicle” in the context of the suitability of the interested drivers for that “Vehicle” and the Organisational and operational requirements. It is the “method of allocation” of the vehicle and is not “selection criteria in choosing a driver”

4)    That letter did not deal with selection criteria for training either as again it is a well-established and accepted practice that the senior staff are next to fill the positions so it follows that they would be trained first. The practice adopted by the respondent of applying no criteria other than discretion is discriminatory and has in this case put me at a disadvantage. There is no agreement that Management can choose indiscriminately who they want to give advantage to. This is not agreed and not acceptable to me or indeed the union.

5)    I am the senior driver, I was entitled to the position, and there is no other criteria that would be appropriate to apply in these circumstances. Again, Management discretion is discriminatory and again has placed me at a disadvantage. I am not accepting this nor is there any agreement on this with my union.

6)    Overtime did not form part of the grievance because the overtime is shared amongst the drivers appointed to the Lorries and the standby drivers have to wait until the appointed driver declines or is unavailable for it. So it is not correct to state that “that overtime has been allocated fairly and evenly across the three categories of permanent, temporary and relief staff. Those that are appointed are recognised as being the ones that have a right to overtime first, similar principle to that of seniority.

In concluding, I should have been appointed to that position, I have more service, I have more experience, I was doing the job and doing it very well. There is no justification for not appointing me to that position. At the heart of this is Management on a solo run, there is no agreement that provides for the selection criteria to be ???. This is not fair, it is less favourable treatment that is not justifiable.

*It is noteworthy that Mr M.D during the 2017/2018 season took over the G route when Mr JH retired, this was not advertised as Mr D was the senior man which entitled him to the route.

On February 20th 2019, Mr O D heard the appeal, at that Mr O D stated that the custom and practice over the last 10 years was to appoint permanent Winter Maintenance Truck drivers based on when they received training. That was rejected by all of the Stewards. Mr O D sent SIPTU the names of those that were on the winter routes for each area, the list of drivers start dates and the list of drivers training dates.

On the 3rd April 2019, Mr O D issued his findings as;

1)    Mr F was a Permanent driver on the N R Truck. While Mr.TC was also a permanent driver on a different system, the N.R. Truck still required 2 Permanent drivers

2)    Seniority applies to redundancy and redeployment but not to appointment of drivers

3)    It is not the established practice that senior drivers are next in line to fill vacant positions

4)    The fact that the claimant is the senior driver does not entitle him to the position of permanent salt truck driver. Custom and practice for at least 10 years dictates that the appointment is based on date of salt training.

·       It is noteworthy that the order of those on the relief list was changed when Management provided the listings. We include the original list that was on the notice board which was produced by management for the 2015/2016 season after Mr.A.H. requested it because he had been bypassed for relief duty on a number of occasions.

In May, the claimant, the county Shop Steward, the deputy S/S for the machinery yard and the SIPTU Official had a meeting with HR Ms C.G and Mr O D We again presented the arguments as to why this was not acceptable. Ms G subsequently informed that she was prepared to look at the arrangements going forward but Mr O D’s conclusions stood and if still dissatisfied third party redress option was available.

The Case

1)    SIPTU is the sole and exclusive bargaining agent for outdoor workers in the respondent’s employment and have never agreed that a training date is the selection criteria for allocating salt gritting vehicles

2)    In October 2017, Mr. MB 2006, Mr. A.H. 2007 and Mr.PF 2009 were given the vacant routes, M.B Regional, A.H E and Mr. PF, N.R. (the least desirable due to the fact that the senior man holding the position had first refusal on all calls) NONE OF THOSE POSITIONS WERE PERMANENT. No evidence to support that Mr PF was permanent has ever been provided. The reason why all 3 were given the routes was because they were the next most senior drivers

3)    The claimant was told that he could keep the position if it was not put on the board

4)    Mr R sent a text confirming that Mr F was the “successful candidate” he made no reference to “redeploying” him

5)    Mr R’s initial response to the Stewards was “seniority was conceded by M.W.” he also said he could choose by picking from a hat, he never mentioned that Mr F was “redeployed” or Permanent. Nor did he state that Mr F got the position because he was trained first

6)    Mr D concluded after investigating that Mr F got the position because he was Permanent and the claimant was temporary, and that Mr R had based his assessment on the “suitability” of the interested parties and had “redeployed a permanent driver” and training date was taken into account and “while seniority is to be considered it is not the deciding factor.

7)    All of these factors are incorrect- none of the 3 on the routes were Permanent

The claimant was more suitable as he had more experience driving and was actually on the Route that was to be filled that being the Regional route since October 2017

The training is a one day course involving loading the gritter to the Truck and watching a video and both had that.

The claimant had 3 years additional service as a driver, that has to outweigh a one-day course that both actually had

8)    Mr D provided no evidence to support that Mr F was permanent, if Mr F was permanent then the claimant and Mr H should have also been deemed to be permanent

9)    Mr O D concluded without evidence that Mr F was Permanent, that is incorrect

Mr O D concluded that the training date was the custom and practice for allocating trucks but failed to explain how the 3 were actually given the runs in 2017

10) The lists provided have been tampered with particularly the order of the relief drivers

11) Mr M.A. was given the Patcher because he was the senior man

12) It has been the longstanding accepted practice in the local authority that driving positions are given out on the basis of seniority. We attach the contents of a letter that was sent to the Road Safety Authority last year by the HR Officer relating to the CPC in which she explained that the driving positions were given out on the basis of seniority

13) That is also the criteria used recently for the acting Driver Mechanic position in the Retained Fire Service section, the most senior in each location are currently in acting positions which were given to them on a seniority basis

14) It is evident that Management’s rationale for giving the position to Mr PF has changed repeatedly with each Manager tweaking the rationale to justify the utterly wrong and unfair decision to give Mr PF, the claimant’s route and gritter position

15) It has been common practice that those driving the gritter have done so prior to being trained (near miss report from a Temp in 2018)

16) The claimant has lost earnings in the region of €2,000 for the 2018/2019 season having been taken from off the Truck (list of dates gritter went out Appendix 8)

17) On the 19th November 2019 we held a meeting with the drivers for the yard and during that asked what the understood criteria for selecting drivers for gritters was and the overwhelming response was “seniority within the yard”

18) The claimant is the only operator to have a route and have it taken from him and replaced with nothing

19) This case is about Management wanting to get rid of seniority as the selection criteria for allocating vehicles and training in the machinery yard. Yet seniority is the accepted practice with driving positions within the Local Authority

In Conclusion

The claimant and the 2 others top of the relief list interested drivers were given the 3 vacant gritter positions for 2017/2018 season.

There was no agreement that training date would be the selection criteria for allocating vehicles for the salting run.

When the permanent holder of the Regional route retired, the Shop Steward who had been assigned to that position on the basis of his seniority at the time approached the Manager to put the position on the board to fill it permanently because that had been the process agreed with SIPTU in July 2017. Mr R does not and did not want seniority in the machinery yard as the selection criteria, he made that quite clear at the meeting with the claimant and the County Shop Steward.

The claimant rightly initiated a formal grievance and as can be clearly seen Management switched and changed their rationale to justify their decision.

This is grossly unfair and the claimant is requesting that you Adjudicator rectify this injustice by

1)    Declaring that this case is well founded

2)    Declare that applying a training date as the criteria for selection has never been agreed and not appropriate criteria for selection of the gritter positions

3)    Compensate the claimant for the loss of earnings arising €1,968

4)    That the claimant is given the Regional route from this 2020/2021 season

Case 2

When the list for the 2019/2020 season appeared, the claimant was not on any of the routes, he has been left on the “relief drivers” list. Instead three drivers were assigned to routes, Mr J.C. and Mr KM were assigned the NR route, Mr J.C. did not commence as a driver in the Machinery Yard until July 2017 and Mr M 10th June 2008. Mr A.H.2007, was assigned to the E route.

Management now contend that Mr J.C is Permanent, but no permanent position was advertised so this cannot be the case. Management contend that Mr C got trained in January 2011 at which stage he was a Library van driver working part time.

Mr M. was trained on the same day as the complainant November 8th, 2012.

Mr H commenced as a driver on February 26th, 2008 and he too did the salt training on November 8th, 2012.

Mr B the claimant is more senior that all 3 and had his training on the same day as 2 of them.

The claimant should have been given a route whether one applies training date or seniority.

On November 1st, 2019, the claimant initiated another grievance, in that he stated

“I am invoking the formal grievance procedures as I am seriously aggrieved by the way I am being treated. In summary my grievances are;

1)    I have not been allocated a position for gritting this year

2)    I consider that I am being subjected to unfair treatment because of my union activities

3)    I was deprived of the opportunity to participate in training

4)    I was told that training would not result in overtime and already it has hence I consider that I have been deprived of the opportunity to avail of that “

This was given to the General Services Supervisor Mr. TB who signed that he received it on the 1/11/19.

Mr B subsequently informed the complainant that he was to go to HR who would deal with his grievances. On November 8th 2019, Ger Malone SIPTU took issue with HR Manager about grievances not being properly dealt with as outlined in the grievance procedures. The HR Manager committed to following up,

We had a meeting on November 19th at which the HR Manager committed to locating the claimant’s grievances and invited SIPTU to make proposals on the allocation of vehicles and training etc.

On November 26th SIPTU sent the HR Manager (Ms.CG) letter summarising our understanding of the meeting for her consideration. (Appendix 10A)

SIPTU sent the proposals to Ms CG November 28th 2019.

Ms CG changed positions within the Council in early January 2020 and Ms T.F. took over the HR Officer role.

SIPTU sought to establish where the claimant’s grievance had gone and why it was not pursued at the time. On January 16th, GM also sought to recommence engagement on the seniority related issues and sent Ms F the proposals previously sent to Ms G and sought to have the claimant’s grievances located and dealt with.

There have been various exchanges with disagreement emerging as to the last 3 put on the gritter with the Council now contending that Mr J.C is permanent on the gritter despite the fact that this was not advertised. So the new scenario from the Machinery Yard Management is that because a permanent route became available Mr C was given it because he was trained first. Yet he was way down the list of relief drivers on the 2016/2017 list from Management. The lists given to SIPTU all put Mr C higher than he was on their 2016/2017 list

In late January, SIPTU arranged for the former Official Mr GF to attend a meeting with the Management and HR at which he clarified that the letter of July 2017 was all done in the context of the redeployment arrangements that are in the National agreements being LIFO.

On April 28th Ms F email GM informing that she had located the claimant’s grievance and given that the issues were related to the seniority similar to the case that the claimant had already in the system and suggested that we append them to this case if we were agreeable. We accepted.

The claimant’s grievances have not been investigated yet a categorical denial that the claimant was subjected to unfair treatment because of his union activities was sent to the union official. This just demonstrates that there is a complete absence of impartiality in judging the claimant’s complaints. How can a person that has not investigated deny that the allegations are correct?

In concluding

Management have deliberately failed to progress the claimant’s bona fide grievances because they know that they do not have a leg to stand on and that it is utterly unjustifiable that the claimant has not been given a route. He is the most senior driver in the machinery yard and even if training date was applied (still disputed) he was trained on the same date as 2 of those given routes.

The claimant was wronged by not being given the Regional route in 2018/2019 season. He has been wronged again; he has been put down the rung under the guise of a training date. This is grossly unfair.

He has also been left off all routes and 2 other operators with less service have been given the routes and both of those were trained on the same day. It is evident to us that this is blatant discrimination.

His grievances weren’t even dealt with because Management knew they did not have a leg to stand on because whatever criteria is applied, the claimant should have been given a route.

Based on the age of those assigned to routes now, the complainant will likely never secure a route and will be at the loss of approximately €4,000/€5,000 per year.

The claimant’s losses arising in 2019/2020 were in the region of €2,880

Adjudicator we request

1)    That you declare this case to be well founded

2)    Declare that applying a training date as the criteria for selection has never been agreed and not appropriate criteria for selection of the gritter positions

3)    Award the losses as compensation of €2,880

4)    That the claimant is given the Regional route from this 2020/2021 season

At the hearing , the union were adamant that the lists submitted by the Council to support their contention that gritting was based on the date of training were inaccurate in a number of respects and questioned the accuracy of the dates and names submitted for a number of the drivers .It was further submitted that that Mr.PF was not permanent and that Mr. R was mistaken in his contentions in this regard. The union stated that the offer made to the claimant in Nov.2018 was for a temporary position. The union challenged the respondent’s lists and questioned why some individuals were not offered routes when according to the respondent’s documents , the individuals had earlier training dates.

The union Shop Steward confirmed that Mr. R had stated that the seniority criteria had changed and had been conceded by a former SIPTU official. The union contended that the respondent had failed to produce evidence of any such agreement. It was submitted that no evidence had been produced by the respondent to support their contention that Mr.PF and Mr. JC were permanent as their posts had never been advertised. The claimant stated that he was not interested in the offer of a temporary arrangement – he alleged that at a meeting with Mr. R the claimant was told by him that if the position was put up on a Board, the claimant would not get the job.

In response to the clarification furnished by the respondent after the hearing the union submitted as follows:

“Our records of the meeting the questions that were supposed to be responded to were;

1) Mr R to explain how Mr P.F. was made permanent in October 2017 and to demonstrate how he complied with the July 2017 agreement of putting the position on the board for expressions of interest

2) How Mr J.C was made permanent and to demonstrate how and when that position was advertised and filled

3) What method was Mr R applying to select workers for the training

4) Mr R to respond to Mr B’s evidence that he Mr R said to him that he had the position and if it goes on the board he may not get it and what would he

do then

The 1st points we make are that the questions that were supposed to be asked have not all been asked.

Additionally the following comments  were furnished:

It was and is my clear understanding that the following extract from the Councils letter of 11th July, 2017 referred only to the allocation of vehicles relevant to the drivers substantive post. This is a new point which was not previously raised and is characteristic of Management’s ever changing points of defence.

1. Drivers and allocation of Vehicles.

(a) Method of allocation.

As discussed, in the event of a driving vacancy arising on a particular vehicle, drivers interested in being allocated the particular vehicle will be invited to indicate their interest. The Technical Services Supervisor will allocate the vehicle based on his assessment of the

suitability of the interested parties and having regard to overall organisational and operational requirements.

Siptu comments:

The salters are an attachment to an existing vehicle and these have been allocated on the basis of seniority based on training date. That’s anon-sense, “seniority” is negated by “training date”. There has never been an agreement with SIPTU to apply “training date” as selection criteria.

On foot of SIPTUs fundamental objections to this method of allocation of salters, we are currently at an advanced stage in changing the procedure of salter allocation. However, I remain of the view, that the method of allocation of drivers to salters has up to and including the 2018/2019 season been done on the basis of date of training in line with long established custom and practice.

Siptu comments:

This was never the understanding of the representatives nor was it the practice, evident from the original list (Appendix 6) that Management had produced for the 2015/2016 season and were operating. In relation to the specific queries raised, please note as follows:

As previously stated in our submission, this was not the initial response from Mr R.

1. Following the retirement of J.H., P.F was appointed as the Permanent No. 2 Driver to the N.R. Salt Gritting Truck using the selection process that had been established and used without question, (including on this occasion), since the mid noughties when

this selection process had been established and introduced as the way that salt gritting positions would be filled.

Siptu comments:

J.H. was on the G route at the time of his retirement and as previously stated in our submission “The operator assigned Mr M D to the New Ross area moved to the G route because the G operator retired. Mr PF was given that NR route” The 3 operators, P.F., the claimant and AH were all given Temporary positions, there was no advertisement and the contention that Mr F was permanent only featured after the complainant initiated his formal complaints and was at 2nd or 3rd stage of procedures when it surfaced. The facts of the matter are that there was no mention of Mr F being permanent, nor was there any process to make him permanent nor was and there any invitation to express an interest in the position as had been agreed in July 2017.

In my view, there was a selection method already established and being used and therefore there was no need to advertise these positions.

Siptu comments:

The letter included in Appendix 1A of the submission from HR to SIPTU proves that there was a requirement to invite expressions of interest.

The appointment of P.F. to the NR route did not raise any questions at the time and is only now being introduced as an issue by the claimant.

Siptu comments:

No questions were raised as Mr F was not appointed permanently to

NR at that time. The claimant raised issues with that from the time the council contended it as is evident from the documentation provided in the submission.

2. The quoted comment in Point 2 is untrue and was never made by myself. What I did say at the time was that I saw no point in advertising

for expressions of interest for the salt gritting positions as there was already an established method of selecting drivers for these positions

and that the pecking order for these positions was already in place.                               Siptu comments:

There was resistance from Mr R to putting up a notice inviting expressions of interest but he certainly did not mention established method or pecking order in place.

What I did say in response to the second part of this point was that by the claimant demanding/requesting that the position of the salt gritter route, that he was temporarily covering, be advertised on the board, that he was now bringing this matter into the public domain where the position was going to have to be filled permanently, and I did say that I would been happy to leave the situation as it was, (i.e.,the claimant in the temporary covering position), until somebody raised it as an issue knowing that the claimant wasn’t the next in line in the established selection process

Siptu comments:

This is refuted, the claimant gave evidence as to what was said to him at the hearing.

Claimant’s Losses

The claimant is on €16.75 per hour. The overtime rate that is paid for each call out is 5 hours, if after midnight or weekend the rate is at double time. If it is before midnight and a week day it is 5 hours at time and a half.

2018-2019 Season

27/10/2018 = 5 x 2 = €167.5

03/12/2018 = 5 x 1.5 = €125.62

06/12/2018 = 5 x 1.5 = €125.62

16/01/2019 = 5 x 1.5 = €125.62

20/01/2019 = 5 x 2 = €167.5

22/01/2019 = 5 x 1.5 = €125.62

29/01/2019 = 5 x 1.5 = €125.62

31/01/2019 = 5 x 2 = €167.5

04/02/2019 = 5 x 1.5 = €125.62

10/02/2019 = 5 x 2 = €167.5

03/03/2019 = 5 x 2 = €167.5

07/03/2019 = 2 x 1.5 plus 3 x 2 = €156.74

Total = €1,747.96

2019-2020 Season

26/10/2019 = 5 x 2 = €167.50

12/11/2019 = 5 x 1.5 = €125.62

15/11/2019 5 x 2 = €167.50

01/12/2019 5 x 2 = €167.50

04/12/2019 = 5 x 1.5 = €125.62

11/12/2019 = 5 x 1.5 = €125.62

15/12/2019 5 x 2 = €167.50

16/12/2019 = 5 x 1.5 = €125.62

17/12/2019 = 5 x 1.5 = €125.62

25/12/2019 5 x 2 = €167.50

03/01/2020 5 x 2 = €167.50

14/01/2020 = 4 x 1.5 plus 1 x 2 = €134

16/01/2020 = 5 x 1.5 = €125.62

18/01/2020 5 x 2 = €167.50

26/01/2020 5 x 2 = €167.50

10/01/2020 = 4 x 1.5 plus 1 x 2 = €134

11/02/2020 = 5 x 1.5 = €125.62

26/02/2020 = 4 x 1.5 plus 1 x 2 = €134

02/03/2020 = 4 x 1.5 plus 1 x 2 = €134

06/03/2020 5 x 2 = €167.50

12/03/2020 = 4 x 1.5 plus 1 x 2 = €134

19/03/2020 = 4 x 1.5 plus 1 x 2 = €134

Total = 3,190.84

Plus 2018/19 €1,747.96

2018/19 2019/20 Total losses = €4938.8

The union was adamant that the 11th.July 2017 document supported their contention that seniority was the determining criteria for gritter selection and highlighted the initial clause which referred to “Without prejudice to the existing agreement in relation to redeployment….” and argued that the existing agreement was that seniority applied. The union also relied upon the RSA communication submitted in evidence by them and in particular the following provision ….” A number of years ago it was agreed to identify one person in each crew as the designated driver and to pay that person at a payscale higher than the GO scale .In general, the most senior person in the crew (not including the foreman ) was appointed as the designated driver provided he had the appropriate licence and was interested in taking the job. No interviews were held and no contracts signed “-in support of their contention regarding seniority.

The union clarified that the gritter position offered to the claimant in 2018 was rejected because of its short term duration. The union was adamant that the relevant list to determine the former practise was contained in their Appendix 6 which was the single list from which it could be determined that seniority was the determining factor for selection. It was argued that subsequent lists drafted by the Council were compiled after the claimant lodged his grievance and it was submitted that it was evident that the respondent had altered the lists to suit their argument and changed the order of the drivers.

The respondent’s representative submitted as follows:

The claimant’s complaint as notified to the WRC is that “In summary, I should have been given the gritter position this year. I reserve the right to add, elaborate and adduce further evidence in future.”

It is the Council’s understanding that this complaint was made on foot of the claimant ’s dis-satisfaction with the outcome a grievance initially raised with the Council in October, 2018.

The claimant raised a similar grievance in October/November, 2019 and my understanding is that this matter, with the Councils consent, was appended to the initial referral.

Background

The Council employ a number of Drivers all of whom are allocated specific vehicles to drive during the normal working day.

In addition, during the winter months, there are five Winter Maintenance Lorries, which treat designated routes with salt, an average of 40 times during the winter months. This work is carried out in additional to the daily duties and drivers assigned to these vehicles are paid the appropriate overtime rates.

Historically, drivers who are interested in being assigned to these vehicles are assigned to these salting vehicles on the basis of date in which they were trained on the vehicles and once permanently assigned, remain assigned from season to season.

In essence, the claimant ’s grievances centre around the allocations of these vehicles and in particular, to his view that the allocation of said vehicles should be done solely on the basis of seniority i.e. by length of service as a driver and with no regard to date of training.

He initially raised this matter by way of grievance in October, 2018. An investigation and assessment was carried out by one of the Council’s Senior Executive Engineers. A copy of the Assessment to the grievance is attached at Appendix 1.

The claimant appealed this response to the Senior Engineer. A copy of the basis of the appeal is attached at Appendix 2. The appeal was examined, but not upheld, by the Senior Engineer. A copy of his assessment is attached at appendix 3.

As the claimant was still dissatisfied, the matter was referred by SIPTU for adjudication.

Council Position

The Council has a long standing history of allocation of Winter Maintenance Vehicles on the basis of seniority having regard to date of training in operating the vehicle.

We are currently in on-going discussion with the Union, at their request, with a view to changing the method of allocation.

However, the Council is satisfied that for a significant number of years up to and including the current date, allocation of these vehicles to interested drivers, has been consistently carried out on the basis of date trained in the operation of the Winter Maintenance Vehicle. Appendix 4 (worksheet 1) attached provides anonymised details of the drivers, their employment start date, cease date (if appropriate) and date trained the Winter Maintenance Vehicle. Worksheet 2 of this appendix shows the allocation of Drivers to the vehicles for each season from 2010/2011 to 2019/2020 inclusive, which clearly shows allocation of vehicles was made based on date of training.

In summary the Council rejects the claim.

The respondent was adamant that the dates of training submitted by them were accurate and denied the suggestions by the union that the information was incorrect. It was contended that seniority had never been the sole criteria for selection for gritting and that it was the employer’s position that a number of factors should be taken into consideration. It was submitted that the claimant had been offered a role as Technical Services Supervisor on the 7th.Nov. 2018 and had rejected it. While it was acknowledged that drivers names appeared on both lists, it didn’t detract from the order in which gritting duties were offered. It was asserted that the Technical Services Supervisor based his selection on all the information available to him and that it was custom and practise that the date of training was the determining factor although it was acknowledged that there was no documentation to confirm this. It was submitted that the respondent was currently in discussion with SIPTU with a view to reaching agreement on the criteria to apply into the future.

The respondent acknowledged that the date of training selection determinant for the gritting duties was not the subject of agreement with the union. It was advised that some drivers opt in and out of gritting duties for a variety of reasons and when that happens drivers are invited to express an interest in the position. It was advanced that to some degree this explained the sequence of offers that were made to PF and JC .It was submitted that the matter of selection for gritting duties did not feature in the negotiations in July 2017 when agreement was reached on redeployment and method of allocation of vehicles e.g. in what circumstances and to whom a new vehicle would be assigned. The respondent was adamant that there was no issue over the years about the determining criteria for the selection of gritters and that it only became a matter of contention when the claimant was not selected for the 2018/2019 season.

In response to clarification sought at the hearing, the respondent made a further submission which was lodged on behalf of Mr.HR

Please find my response to the two comments below where further clarification is being sought:

“It was and is my clear understanding that the following extract from the Councils letter of 11th July, 2017 referred only to the allocation of vehicles relevant to the drivers substantive post.

1. Drivers and allocation of Vehicles.

(a) Method of allocation.

2

As discussed, in the event of a driving vacancy arising on a particular vehicle, drivers

interested in being allocated the particular vehicle will be invited to indicate their interest.

The Technical Services Supervisor will allocate the vehicle based on his assessment of

the suitability of the interested parties and having regard to overall organisational and

operational requirements.

The salters are an attachment to an existing vehicle and these have been allocated on the basis of seniority based on training date. On foot of SIPTUs fundamental objections to this method of allocation of salters, we are currently at an advanced stage in changing the procedure of salter allocation. However, I remain of the view, that the method of allocation of drivers to salters has up to and including the 2018/2019 season been done on the basis of date of training in line with long established custom and practice. In relation to the specific queries raised, please note as follows:

1. Following the retirement of J.H, P.F was appointed as the Permanent No. 2

Driver to the New Ross Salt Gritting Truck using the selection process that had been

established and used without question, (including on this occasion), since the mid

noughties when this selection process had been established and introduced as the way

that salt gritting positions would be filled. In my view, there was a selection method already established and being used and therefore there was no need to advertise these

positions. The appointment of P.F to the N.R route did not raise any questions

at the time and is only now being introduced as an issue by the claimant.

2. The quoted comment in Point 2 is untrue and was never made by myself. What I did say at the time was that I saw no point in advertising for expressions of interest for the salt gritting positions as there was already an established method of selecting drivers for these positions and that the pecking order for these positions was already in place. What I did say in response to the second part of this point was that by the claimant

demanding/requesting that the position of the salt gritter route, that he was temporarily

covering, be advertised on the board, that he was now bringing this matter into the public

domain where the position was going to have to be filled permanently, and I did say that I

would been happy to leave the situation as it was, (i.e., the claimant in the temporary

covering position), until somebody raised it as an issue knowing that the claimant wasn’t

the next in line in the established selection process.”

The respondent was adamant that the dates of training submitted by them were accurate and denied the suggestions by the union that the information was incorrect. It was contended that seniority had never been the sole criteria for selection for gritting and that it was the employer’s position that a number of factors should be taken into consideration. It was submitted that the claimant had been offered a role as Technical Services Supervisor on the 7th.Nov. 2018 and had rejected it. While it was acknowledged that drivers names appeared on both lists, it didn’t detract from the order in which gritting duties were offered. It was asserted that the Technical Services Supervisor based his selection on all the information available to him and that it was custom and practise that the date of training was the determining factor although it was acknowledged that there was no documentation to confirm this. It was submitted that the respondent was currently in discussion with SIPTU with a view to reaching agreement on the criteria to apply into the future.

The respondent acknowledged that the date of training selection determinant for the gritting duties was not the subject of agreement with the union. It was advised that some drivers opt in and out of gritting duties for a variety of reasons and when that happens drivers are invited to express an interest in the position. It was advanced that to some degree this explained the sequence of offers that were made to PF and JC .It was submitted that the matter of selection for gritting duties did not feature in the negotiations in July 2017 when agreement was reached on redeployment and method of allocation of vehicles e.g. in what circumstances and to whom a new vehicle would be assigned. The respondent was adamant that there was no issue over the years about the determining criteria for the selection of gritters and that it only became a matter of contention when the claimant was not selected for the 2018/2019 season.

I have reviewed the voluminous submissions presented at the hearings, the follow up submissions and clarifications and noted the respective position of the parties. At the core of this dispute is a fundamental disagreement between the parties as to what criteria should apply in assigning drivers to winter gritting duties. I see no merit in focusing on the minutiae of  who got what route , who was senior to who or on   who got a gritting assignment and or gritter training earlier than another party – to do so would in my view add to the web of confusion around the subject matter at the heart of this conflict .

It is apparent that currently there is no formal collective agreement between the parties on what criteria should apply for selecting drivers for gritting duties – duties which attract additional allowances. The union has argued that seniority has always been the cornerstone of any such collective process – notwithstanding this assertion the union in their submissions have sought to rely on the agreement captured in   11th.July2017 – which does allow discretion to be applied in the selection process - in support of their contention that seniority determined who got the gritting assignments. This position is inconsistent with their assertions on seniority being the determinant. Notwithstanding this I do acknowledge the merit in the unions contention that the 2015/2016 list supports their arguments in this regard and have taken account of the correspondence to the RSA of the 3rd.Oct 2019 which acknowledges that the appointment of a designated driver was based on seniority without interview – going back for a number of years .The union has argued that the lists submitted by the County Council were contrived after the claimant lodged his grievance and are inaccurate .

For their part the respondent is also relying upon the 11th.July 2017 agreement to support their contention that a number of factors are taken into account by the Supervisor in the allocation of vehicles and argues that discretion can be exercised by the supervisor in the selection of vehicles and drivers. The respondent is adamant that the list furnished to the WRC is accurate and supports their contention that the determining criteria for selection for gritting is the date of gritter training. On the one hand the date of selection for training is being advanced as the determinant and on the other hand a list of discretionary factors are being referenced by the respondent as grounds for selection. It is however difficult to comprehend why Mr. R confused matters at his initial meeting with the union (4.11.2018) when he focused on his understanding of an agreement that had been reached between a former Siptu official and HR which conceded seniority as a criterion for selection of drivers .No evidence of this agreement on concession of seniority has been advanced and no evidence of an alternative collective agreement to replace the seniority criteria has been presented by the respondent.  The respondent has acknowledged that the matter of training dates as the selection criterion was not the subject of a collective agreement to replace any previous arrangement .The union has contended that a number of named drivers were assigned gritting duties without any training and I found a concerning lack of clarity around the subject matter as to how drivers were selected for gritter training. At the appeal stage of the claimant’s grievance, the respondent found that Mr. R had followed the protocol set out in the 11th.July 2017 agreement which allowed for the exercise of discretion in the allocation of vehicles. However, the appeals officer went on to state that Mr. R “considered the 6 expressions of interest and redeployed a permanent driver to the post”. However, the first paragraph of that agreement states “without prejudice to the existing agreement in relation to redeployment”. The records of meetings submitted by both parties record both parties acceptance that the employer and the unions accept that the determining criteria for redeployment is seniority.

In all of the circumstances I am obliged to conclude that both parties have adopted confusing and inconsistent positions and this has led to an absence   of clarity around the gritter selection process. Ultimately the parties have polarised views on the relevance or otherwise of the July 2017 agreement in the context of this dispute and the indications from both parties that they are at an advanced stage in finalising a new collective agreement on the matter is a very welcome development.

I have considered the claimant’s allegation that he has been the subject of discriminatory treatment – while I appreciate the claimant holds this view fervently , I cannot reconcile this with the - all be it time limited - offer of gritting duties made to the claimant in November 2019   or indeed with the acceptance   by both parties that they are near to concluding a collective agreement for the future on the criteria for selection for gritting duties based on the grounds of seniority, as sought by the union and the claimant.

It is in the best interests of both parties that there is a clear and transparent selection criteria for selecting the assignment of drivers to carry out more lucrative duties- criteria that is fair and that is seen to be fair. Given the imminent emergence of a fresh collective agreement on what is to happen into the future in allocating gritter duties, I have considered the arguments raised with respect to the claimant’s grievances for 2018/2019 and 2019/2020. Both parties accept that there was no agreement between the union and the employer  on training dates being the criteria for selection - this gave rise to confusion and a perception of bias as the claimant saw it. While both parties have to accept some responsibility for the ensuing confusion, I find the greater onus was on the respondent to have a system in place that was transparently fair. As a consequence, I am partially upholding the claimant’s grievance and recommend in full and final settlement of this dispute that the respondent pay the claimant a compensatory sum of €2,000. I further recommend that both parties commit to observing the terms of the impending collective agreement which will define seniority as the criteria for selection of drivers assigned to gritting duties into the future.

Criteria for selection of drivers for lucrative assignment