Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

Anne Flynn SIPTU

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-00048225-001

20/1/2022

The worker has been acting up in a role since 2017 and is now seeking to be made permanent in that role. The Respondent states that a permanent position is not available at the moment as the individual the worker is covering, is being temporarily reasonably accommodated in another role.

The Worker commenced working for the Respondent on the 1st February 2007. There is a pool of drivers who carry out duties of salting on a seasonal basis. The Worker has been driving the Enniscorthy route since the start of the winter 2017. In October 2021 a notice was put up on the board advertising for a temporary driver on the Enniscorthy route. The worker previously did not have to apply for this position, but he had to apply on this occasion. He was the only applicant for the role and as a result he continued to be the only driver on this route.

The Respondent has 5 salting lorries. Each lorry is appointed two drivers. The two drivers take it in turn to go out and drive the lorry over the winter months. The worker has never missed a call out and has worked the last 4 Christmas days and 2 out of 4 New Year's Eves and New Year's Day. He raised a grievance in relation to the position in November 2021, but that grievance was not upheld. Having exhausted the internal process, the worker filed his claim with the WRC.

The worker has been the only driver on the Enniscorthy route since 2017/2018. The Respondent is claiming that another driver was appointed to the position and therefore the position is not a vacant one. That individual, Mr. A, was appointed to his new position in the summer of 2017. Mr. A stopped driving in April 2016 and has not driven since. The worker has also been covering Mr. A’s day work on the Archway patching lorry. Mr. A, due to a disability is being reasonably accommodated in another role. Whether or not he will be capable of returning to the driving position is in the words of the respondent 'in the lap of the Gods'.

There was a permanent driver holding the position the worker now seeks. He retired but before he retired, Mr. A was reasonably accommodated with a moved to another position. Therefore, the position could not have been filed by Mr. A.

Since 2018/2019 three men have been appointed to the salting lorries, all of whom are less senior than the Worker. In a separate WRC case, a recommendation was made stating that seniority was to be a criteria used for the selection of drivers assigned to gritting duties in the future.

The Respondent employs 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 a number of 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 do not receive any additional remuneration other than payment of the appropriate overtime rates. Historically, drivers who are interested in being assigned to these vehicles were 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.

SIPTU expressed concern and dissatisfaction with the method of assignment of drivers to the vehicles and following protracted engagement at local level an agreement was put in place regarding the allocation of vehicles.  A separate grievance was raised and was referred to the WRC for Adjudication. As part of that process, details of drivers, appointments etc were provided to SIPTU. Whilst the Union raised a number of matters regarding the method of the appointment, they did not raise any concerns in relation to the appointment of any specific individual. The signed agreement clearly stated that it would be put in place effective going forward from the 20/21 season.

In November 2021 the worker lodged a formal grievance in relation to his own position.

The Respondent responded to SIPTU on 26/11/2021. SIPTU responded in December, setting out maters that they felt had not been addressed.

WRC confirmed by letter dated 25/01/22 that the matter had been referred for adjudication. The Respondent 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. This has now been superseded by the agreement previously referenced.  

The employee referenced by the worker was appointed as a driver in August, 2006 and was trained on the salting vehicle in October, 2007. He was assigned in a temporary capacity to the salting vehicle in 2011/2012 and continued to provide temporary cover up to and including the 2015/2016 season. He was permanently assigned to the vehicle during the 2016/2017 season when a permanent vacancy arose. It is accepted that during the 2016/2017 season he was assigned new duties and because of this a temporary vacancy arose on the same vehicle.

The worker was appointed as a driver in February, 2007 and trained on the salting machine in November, 2012. He was temporarily assigned to a vehicle in the 2017/2018 season and has been temporarily assigned to that vehicle each season. Both employees (regardless of current assignment of duties) hold the position of permanent Driver B with the Council.

The assignments to the salting vehicle at the time of the temporary assignment in 2011/2012 through to the permanent assignment in 2016/2017 were done on basis of date of training.  Had the assignments been made on the basis of seniority, the worker still would not have been assigned to said vehicle.

Most of the facts in this matter are not in dispute. The Worker states that he has been acting up in the role of salting since the winter of 2017. The individual he has allegedly been covering was moved to a different role as he required reasonable accommodation, but he did so before the man who held that role permanently, retired.  The Respondent states that they are not in a position to offer that role to the Worker on two grounds, Firstly, because Mr. A might return to driving duties and the role is actually his. Secondly, because even if the role was available there are two individual’s more senior than the worker, who might want it.

The role in issue here is an over time position and is weather dependent. The worker is actually carrying out Mr. A’s fulltime day role. That is the position that the Respondent has legal obligations to protect while Mr. A is being reasonably accommodate. There is no obligation on the Respondent to hold a potential, weather dependent, overtime position open for him. The reality is that if we had a very mild winter, nobody would be required to carry out those duties. On that basis I am making the following recommendation:

1.       The position be advertised.

2.       If the worker is successful following his application that he be appoint to that position on a permanent basis.

3.       If Mr A ever returns to driving duties, the work is to leave the position he is currently covering for Mr. A ( on the patching lorry) immediately.

1.           The position be advertised.

2.           If the worker is successful following his application, he is to be appoint to that position on a  

               permanent basis.

3.           If Mr. A ever returns to driving duties, the work is to leave the position he is currently  

              covering for Mr. A immediately.

Reasonable accommodation. Acting up. Permanent positions. Industrial Relations.