Complainant

Respondent

Anonymised Parties

An Employee

A Public Body

Representatives

Aine Feeney SIPTU Workers Rights Centre

 HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts 1969

ADJ-00030309

The Complainant commenced employment with the Respondent in 1999 as an apprentice Construction Plant Fitter. The Complainant completed his apprenticeship and was made permanent as a Construction Plant Fitter on the 11th September 2003. The dispute concerns the grading and consequential payment of the Complainant since his transfer back to his original location in 2006.

Following the completion of his apprenticeship as a Construction Plant Fitter, the Complainant  stated that he was asked to temporarily move from his original location to another location to facilitate the service needs of the Organisation. The Complainant contends that despite the fact that representations were made to him in 2004 related to the temporary nature of this move, the position was that he was in this other location for two years which entailed a daily round-trip commute of 60 km. In the course of 2005 the Complainant applied for a transfer back to his original location and this was granted in June 2006. The Complainant stated that in 2006 he saw a pattern of transfers and that he relied on oral representations made to him at the time that if he transferred back to his original location as a General Operative and carried out that role “for a while” everything “would work out fine”.

The Complainant stated that he always considered that “in due course” he would be transferring back to his original role of construction plant fitter and that he never consented to anything other or to being left in the role of General Operative indefinitely.  In this regard the Complainant stated that he was told that he had to wait for a position to become available and that he could then apply via a transfer request process. The Complainant also stated that in 2006 he was not furnished with any correspondence or documentation related to his transfer and in particular he disputed that he ever received a letter from the Respondent dated 2/6/’06 which purported to offer him the post of General Operative or the job description of that role. The Complainant stated that he did not sign any transfer documentation and that all the transfer arrangements were made through his line manager. He stated that at the time he was advised that someone would contact him to go through the paperwork but this never occurred.

The Complainant stated that when he transferred back to his original location in 2006, he was told to bring his tools and that his duties when he returned were akin to a plant fitter and were “over and above a General Operative”. In terms of his salary, the Complainant outlined that there was a period of time when he was in receipt of a tool allowance so that he did not notice the reduction in salary to general operative grade when he transferred back.

In 2018 the Complainant formally applied to be reinstated to his original position of Construction Plant Fitter as he stated that there was no point in doing anything about the situation until 2018 as a recruitment moratorium existed prior to then. The Complainant stated that he was advised that his application was noted on the personnel file and that it was also noted that his role was in fact General Operative Band 3 Rural. In 2019 the Complainant spoke with HR about his request to return to the role and grade of Construction Plant Fitter but was advised there were no available positions at the time. The Complainant has continued to correspond with the Respondent’s HR up to 2020 but to-date the matter remains unresolved for him. The Complainant has furnished the relevant correspondence in that regard.

It is the Complainant’s position that he would not have transferred back to his original location in 2006 “had the full implications of the transfer been explained….” to him. He stated that he relied on the representations made to him in 2006 that notwithstanding that he was transferring back in the role of General Operative, he expected to be reinstated in a short time to the role of Construction Plant Fitter. The Complainant stated that he has always been committed to the Respondent’s business and he cited the Respondent’s transfer and mobility practice. The Complainant   is seeking to be reinstated to the grade of craftworker and facilitated with a return to the duties and salary grade of a construction plant fitter as this is the role into which he was made permanent in 2003. In addition he is seeking compensation for the distress he has endured and for the loss of income sustained. The Complainant cited various case law in support of his position.

The Respondent stated that the Complainant’s position was unreasonable, that there was no reason he was entitled to presume he could transfer back to the position of Construction Plant Fitter and nor was it reasonable that he would assert that he was unaware he was being transferred back in the role of General Operative. The Respondent stated that while conversations may have happened at a local level, the Complainant was notified in 2006 of his change of role to General Operative, that he accepted this role and that there was no agreement with the Respondent beyond that. In this regard, the Respondent cited the aforementioned correspondence of 2/6/’06 which purports to be the offer to the Complainant of the post of General Operative. The Respondent stated that the Complainant accepted this offer in 2006 and reported to his original location on that basis.

The Respondent stated that the pay differential with the role of Construction Plant Fitter would have alerted the Complainant to the fact that he was now holding the position of General Operative. The Respondent also stated that the Complainant has held the position of General Operative since 2006 and that he did not seek to transfer back to the role of Construction Plant Fitter until 2018. In this regard, the Respondent outlined the various correspondence from 2018 wherein the Complainant has applied to be re-graded as a Construction Plant Fitter/ie his original role and stated that his request in this regard was placed on a transfer list. The Respondent also outlined that the role of  General Operative has changed since 2006, that there were three bands and that whilst the Complainant had previously applied for posts at bands 1 and 2 level, he was unsuccessful and therefore continued to operate at band 3 level.

The Respondent stated that when an employee transfers it does not hold his/her original role/position open and that it does not allow employees to transfer back to their old positions automatically or to transfer without the existence of a vacancy for the particular role and an interview process. The Respondent stated that in 2006 there was no vacancy for a Construction Plant Fitter at the Complainant’s original location. The Respondent further stated that the Complainant’s current location “has never required the services of a Fitter, nor is there such a need for a role in the near future. Such a demand must exist and is subject to sanction by the Department of Public Expenditure and Reform before the Respondent would be permitted to offer the Complainant an opportunity to interview for the role”.

It is the Respondent’s position that there have been opportunities for craft workers within its Organisation, that its Organisation has changed since 2006 including the various roles therein and that it “would not be appropriate to permit the Complainant to change his role to Fitter….in the absence of any current vacancy….or interview/selection process”. In relation to conversations from 2006, the Respondent indicated that the import of these have lapsed over time and that the correspondence between the Respondent and the Complainant reflects the position.

In the first instance I wish to consider the jurisdictional point as to whether the Complainant is a worker for the purpose of the Industrial Relations Acts 1969 (as amended). In this regard, I note that Section 23 of the Industrial Relations Act [1990] stipulates as follows:

23.—"(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(d) an officer of a local authority,

(e) an officer of a vocational education committee, or

(f) an officer of a school attendance committee.

             (2) In subsection (1) “local authority” means—

(a) a council of a county, a corporation of a county or other borough, a council of an urban district, the commissioners of a town, a health board or a port sanitary authority,

(b) a committee or joint committee or board or joint board appointed (whether before or after the passing of this Act) by or under statute to perform the functions or any of the functions of one or more of the bodies mentioned in paragraph (a), and

(c) a committee or joint committee or board or joint board of or appointed by one ormore of the bodies mentioned in paragraphs (a) and (b) but not including a vocational education committee, a committee of agriculture or a school attendance committee.

(3) The Minister for Finance may from time to time—

(a) designate for the purpose of subsection (1) any persons (other than established civil servants within the meaning of the Civil Service Regulation Act, 1956 ) employed by virtue of section 30 (1) (g) of the Defence Act, 1954 , or employed by or under the State, and

(b)  cancel the designation of any persons under this subsection.

(4) Any person who stands designated by virtue of section 17 (2) (a) of the Industrial Relations Act, 1969, at the passing of this Act shall remain designated for the purpose of subsection (1) unless the designation is cancelled under subsection (3) (b).

(5) The Government may by order amend the definition of “worker” in subsection (1) and may by order revoke or amend any such order.

(6) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House, within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder”.

In support of its position that I have jurisdiction to hear his complaint, the Complainant’s representative SIPTU furnished a supplemental submission wherein it stated as follows:

“Section 8 of the 1990 Act provides the definitions for reference in matters of Trade dispute and therein the only exclusions are members of the Defence Forces or an Garda Siochana”

The Complainant also cited a number of Labour Court decisions wherein the Respondent in this case was a party to proceedings under the Industrial Relations Acts. In this regard, the Complainant has submitted “…that an inference can be drawn that the Respondents have acknowledged in those cases that the Worker fell within the definition applicable for referrals under the Industrial Relations Acts”.

On the other hand the Respondent has submitted that the definition of worker specifically excludes “a person who is employed by or under the State” and has cited various case law in support of this submission. Further, the Respondent stated that “State employees who were not civil servants are also excluded” from the worker definition, that the Complainant is “a State Industrial Employee employed by a Government Office….”, that his terms and conditions are in accordance with state employees and that he is covered by the State Employee’s Code of Practice on Grievance Procedures which he did not exhaust.

Having reflected on the arguments put forward, it is my decision that I have jurisdiction to hear the complaint for the following reasons:

·       The categories of persons excluded from the definition of worker as set out at paragraph 23 above are specifically identified and there is no specified exclusion of the Respondent’s employees;

·       The Respondent’s employees are not excluded from referring a trade dispute by virtue of Section 8 of the Act;

·       I do not consider that the applicability of state employee’s terms and conditions within the Respondent is determinative of the matter.

With regard to the substantive matter, I have considered the submissions and documentation in relation to this dispute including the Complainant’s original contract as an apprentice Construction Plant Fitter, the Respondent’s confirmation that he was placed on the first point of the craft scale on 11/9/’03, the disputed letter of 2/6/’06 which I note is unsigned, the General Operative Band 3 job description which the Complainant stated he only received in February 2020, various salary scales and the correspondence provided by the parties from 2018 onwards in relation to the Complainant’s request to be reinstated as a Construction Plant Fitter in his current location.

Having regard to all the submissions, I am of the view that I cannot definitively reconcile whether or not in 2006, the Complainant actually received the unsigned General Operative post offer of 2/6/’06 and the job description for that role. That being said, however, I am satisfied that in 2006, the Complainant was and/or should have been aware that he was transferring to the role of General Operative at his original geographical location. It seems to me that at the time, the Complainant’s priority was to return to his original location. Whilst I accept the Complainant’s bona fides that he relied on representations to the effect that he would be reinstated in early course to the position of Construction Plant Fitter, I find no concrete basis to ground any such reliance or expectation. From 2006 to-date the Complainant has been paid as a General Operative and did not raise the issue of reinstatement to his original role of Construction Plant Fitter until 2018. Accordingly, with regard to the 2006 transfer, I conclude that the Respondent did not act without the knowledge of the Complainant or contrary to his consent and further, that the Respondent did not unilaterally alter the Complainant’s terms and conditions.

Having regard to the foregoing, I make the below recommendations.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and accordingly I recommend:

·       That the Complainant continue to be vigilant as regards any suitable Construction Plant Fitter posts which may arise;

·       That having regard to the Complainant’s initial training as a Construction Plant Fitter and his proven and accepted commitment to the Respondent’s organisation, that the Respondent make a genuine effort to assist the Complainant with his request to transfer back to his original role.  

Grading Dispute, Definition of Worker