Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

Jay Power 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-00042459-001

12/02/2021

The Worker commenced employment as a General Operative with the Respondent in 2006. Having subsequently worked in the capacity of Acting Driver for a number of years, he was unsuccessful in his application for a permanent role and was redeployed back to his role of General Operative in 2019. This redeployment has resulted in a loss of earnings and the Workers is seeking compensation in respect of same.

The Worker has been a General Operative/Driver with the Employer, for almost 17 years. Following his forced re-deployment in October 2019 to a difference section of the Employer, SIPTU on his behalf sought to use the agreed industrial relations mechanisms to address issues, including losses of earnings associated with the forced redeployment. This has resulted in previous WRC adjudication and Labour Court hearings which have both recognised that a loss of earnings mechanism was appropriate and that local engagement to resolve this should take place. Further to the Labour Court recommendation, SIPTU has sought to resolve this matter locally but there has been no resolution.

SIPTU are therefore seeking that the WRC adjudication services make a definitive decision on the losses associated with the Worker’s forced transfer based on the previous WRC and Labour Court hearings so that the Worker can finally resolve this long standing issue.

The Worker was appointed as a temporary General Operative in 2006 and as a permanent General Operative on 1st April 2008, in accordance with his contract of employment. The Worker was appointed Acting Driver in 2006 and 2007 for short periods (returning to his substantive role) and in 2008 for a continuous number of years.

The Worker’s substantive grade is General Operative, and he had been Acting Driver in a particular section of the Employer for some years. A confined driver competition was held in April 2019 and both the Worker and another General Operative in the section were eligible and applied for the post. The other General Operative was successful at interview and has been appointed to one of the now Driver posts in the section along with another appointee from the panel. That being the case, the Worker reverted to his substantive post, General Operative, in October 2019 and was reassigned to a different section.

The Worker pursued the matter to the WRC, and it was subsequently appealed to the Labour Court, seeking a return to his role of Acting Driver in the section he had previously been in and also seeking compensation in respect of losses he claims to have suffered since his transfer. The Labour Court indicated in their finding that they had no information before it which would indicate the degree to which any of the losses alleged by the Worker might be eligible for consideration, as appropriate for compensation in line with normal agreements and arrangements in place within the Employer.

In November 2020, SIPTU subsequently wrote to the Employer following the Labour Court decision in relation to alleged losses incurred from the claimant’s transfer. The Employer responded refusing the claim and informed the Worker that he could appeal the outcome in line with the Grievance policy. It was highlighted however that that instead of appealing the matter, SIPTU referred it back to the Labour Court who stated that this was not the subject of the original referral and was a separate matter.

SIPTU subsequently referred the matter to the WRC on 12th February 2021 without appealing the decision of the Employer and exhausting local procedures. The Employer considers that local procedures have therefore not been exhausted.

I note in the first instance that the Worker failed to appeal this dispute internally prior to referring the matter to the WRC on 12 February 2021. This was despite having been informed by the Employer that he should do so on 12 January 2021, when the claim was refused.

While I understand the desire of the Worker to get this matter resolved expeditiously, especially as it has been ongoing since October 2019, and I also recognise that it has already been subject to a hearing before both the WRC and the Labour Court, I am concerned that I would set a precedent by not recommending that the local procedures should be exhausted fully.

I find therefore that the industrial relations processes must be adhered to and that the matter should have been appealed internally as advised by the Employer in their correspondence of 12 January 2021, prior to the referral of the matter to the WRC 

I recommend that the Worker exhaust the Employer’s internal procedures. Specifically, I recommend that he should appeal the grievance outcome internally as per the Employer’s letter of 12 January 2021.

This appeal should be conducted by the Employer within four weeks of the date of receipt of this recommendation, given that this matter has been ongoing for a considerable period of time.

Failure to exhaust procedures