Complainant

Respondent

Anonymised Parties

Crafts Supervisor

Public Transport Provider

Representatives

Sean Heading Connect Trade Union

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-00042240-001

01/02/2021

The Employee commenced employment on 9 January 1995. His gross weekly salary is €1297.54; net €870 for a 48-hour week. He began acting up occasionally as Crafts Supervisor for a number of years on project work and was offered a promotional position of Inspector in July 2019.  He submits that the contract he signed for the promotional position included a rostering arrangement common to the grade which is 48 hours over a five-day working arrangement. There was also an on-call arrangement for Inspectors whereby they work only 45 per week and hold the remaining three hours for on-call work. He claims the Employer is not abiding by the contractual terms with regard to roster and furthermore that  he is also treated differently to other Inspector colleagues regarding the on-call arrangements. He is seeking for his position to be regularised in line with the grade. The Employer refutes the Employee claim and submits that the there was a Workplace Relations Commission (WRC) agreement in which the Employee was appointed to the grade on a personal-to-holder basis but continues to work as a craftworker and on a craftworker roster.   

In October 2012 the Employee attended a meeting with his union representative with a manager from Human Resources. The purpose of this meeting was to discuss the “Long Term Acting Supervisor” role. At this meeting the Employee and his union representative understood that he was being appointed to the role of Acting Supervisor, which would be recognised as an Inspector grade and that issues relating to the appointment such as pension would be sorted out. 

 In the summer of 2019 the Employee attended a company medical and was requested to report to the Human Resources department where he was presented with a new contract as an Inspector on a ‘personal to holder basis’. This letter of confirmation asserted that he was to be appointed as per the WRC agreement from 10 July 2019. The Employee transferred to the specific pension scheme for that grade.

The Employee’s confirmation letter provided details of reporting structure, pension arrangements, salary and that he would be required to work 48 hours over a 5-day working roster.  However, when the Employee reported for duty, he was advised by his line manager that, despite his contract clearly stating that the hours “attached to this role are 48 hours over a 5-day working arrangement”, that he instead would be required to work a 48-hour 5 day over a 7-day roster, which he formerly worked. The change in roster requires the Employee to work weekends, nights, answer and attend calls which he does not receive any payment for the first 3 hours, unlike other Inspector colleagues who work 45 hours of the 48 and retain the other 3 hours in reserve for call outs.

 This miss match of working conditions and practice has resulted in the Employee working some aspects of his Inspector’s contract and some aspects of his previous contract as a craftworker. No other acting supervisor in the regularised role, has been required to work aspects from 2 different roles.  

 The objective of the September 2017 ‘Upgrading of Persons ‘Acting -up’ as the WRC agreement was known, was to apply to all collectively represented grades at the employment and applied to “Any employee who has been acting in a higher-grade position continuously for four years or more at date of agreement will be granted the higher position on a permanent basis”. A number of stipulations had to be met: established vacancy, cost neutral and no back filling. The Employee filled these requirements as is evident from the awarded contract .

The Employee’s working terms and conditions should be in line with those of his colleagues who hold similar inspector contracts.

The 2017 WRC agreement to resolve the ‘acting up’ issue contained two elements. The first set of criteria was those who were acting up continuously for four years in an established position (permanent basis) and the second set of criteria was those who acted up in designated project work but returned normally to the craftworker grade when required (personal to holder basis). The Employee was appointed on the latter criteria and continues to work as a craftworker but receives the Inspector rate of pay, pension and other terms. However, his roster and call out arrangements are those of the craftworker grade.

The letter of 10 July 2019 to the Employee clearly states that he was being promoted to the position on a personal basis but was mistaken in describing it as “Regularisation over 4 Years acting into role” and mistaken also in the roster description. However, the Employee would have been aware of the role offered prior to this letter and continues to operate as a craftworker in the main but receiving the Inspector pay and benefits on a ‘personal to holder’ basis i.e. ‘red circled’ basis but still operating in the main as a craftworker.

The Employee’s circumstances do not match the criteria outlined in the ‘four years’ acting up scenario described in the WRC agreement. He was not acting up in an established vacancy and what he is now seeking in his complaint will not be cost-neutral to the company as a new vacancy will be created to fill in the hours on the craftworker roster that the Employee already works.

The facts do not support an appointment under the four-year acting up criteria. The Employee’s craftworker position was held open as he was acting-up on projects. He retains an Inspector’s rate of pay but not the associated terms of an established position like rostering and call-out arrangements. 

The Employee is relying on the wording of his appointment letter which the Employer accepted was not a true reflection of the facts. However, this should not be a reason why the company then have to apply different appointment criteria to the Employee as have been applied to other employees.

If the Employee is now allowed to adopt the terms of the Inspector roster it will create a gap in the Craftworker roster that will have to be filled either by overtime or by filling a vacancy.

The Employer submits that if this claim is conceded it will set a precedent for other workers seeking similar terms and conditions which will undermine the WRC agreement.

The Employee’s claim here centres around his purported entitlement to enjoy the roster terms as laid out in the letter of appointment of 10 July 2019 as well as the similar call-out arrangements that apply to the established grade. This letter is headlined “Regularisation Over 4 Years Acting into Role” under the WRC agreement of 2017. The Employer accepts that this was an error and instead that the letter should have been be headlined under the 8 year “acting up” on a personal to holder basis. The difference is the “4-year” provision in the agreement refers to acting up continuously in an established position   whilst the “8 year” provision refers to acting up on project work with an expected return to the Craftworker grade but still holding the pay, pension and holidays of the promoted grade on a ‘red circling basis. There is a further acknowledged error in the description of a roster.

The Letter of confirmation of 10 July 2019 promotion cannot be read in isolation. It has its genesis in the WRC agreement of 2017. Therefore, both documents have to be read together to find the true intention of the parties. I have not heard any plausible argument from the Employee about his current or previous work arrangements that puts him in the realm of acting-up in an established Inspector role other than an assertion that he comes under the ‘4 Year’ Regularisation agreement. This reliance seems to stem purely from the wording of the confirmation letter. The working arrangements of the Employee however suggest that he is firmly within the ‘8 year’ project working arrangement as distinct from the ‘4 year’ established position. It is clear he was not acting up continuously in an established grade but instead he worked intermittently in a supervisory for over 8 years in project work.

It is evident that the Employer mistakenly sent different terms in relation to the heading and roster arrangements in the confirmation letter of 10 July 2019. The question then arises as to whether the Employee can rely on this mistake to confer a right to him of a different roster and call-out arrangements.  I am not of the opinion that it does. I am not satisfied that the Employee had a reasonable expectation that he was receiving a permanent promotion as per the ‘4-year’ provision when it is quite apparent that he fell under the ‘8 year’ provision in the WRC agreement on a ‘personal to holder basis’, with reversion to  Craftworker duties. Therefore, I do not recommend concession of his claim that he should be eligible for the roster and call-out arrangements for the established Inspector grade. Such a conclusion would allow the Employee to benefit from what was a genuine, albeit shoddy, mistake on the facts.   

The above conclusion does not mean that the Employee was not treated carelessly by the Employer. The issue of a mistaken letter without a written retraction by the Employer was unacceptable. The line manager corrected the letter verbally by informing the employee when he reported for duty that his rostering arrangements were otherwise than in the letter. However, the reluctance of management to acknowledge the mistake in written form and in a timely manner led to a prolonged and divisive grievance procedure. I therefore recommend that Employer pay the Employee compensation of €3,000 for the unreasonable manner in which it dealt with the Employee’s promotion.   

I do not recommend concession of the Employee’s claim that he is entitled to roster and on-call arrangements similar to that of established Inspectors in the grade.

I recommend that Employer pay the Employee compensation of €3,000 for the unreasonable and careless manner in which it dealt with the Employees promotion.  

Industrial Relations Act 1969, Promotion, Rosters.