Employee

Employer

Anonymised Parties

A Foreperson

A Local Council

Representatives

Jay Power, SIPTU

 Represented by HR Managers

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000449

11/07/2022

The employee is a fitter mechanic and he joined the Council in May 2006.  He has always worked in the mechanical section.  The following is a chronology of the progress of his career since 2019:

January 2019:  The employee applied for the role of assistant foreperson of works (AFOW) in a mechanical role and he was placed number 2 on the panel.

March 2019:  When the foreman moved to the role of inspector, the “number 1” on the panel was appointed as acting foreman and the employee was appointed acting AFOW.

June 2020:  The employee applied for the role of AFOW in a non-mechanical role and was placed number 1 on the panel.

January 2021:  He was appointed to the role he competed for in June 2020, as AFOW in a non-mechanical role.  He signed a contract to this effect on January 28th.  Before he moved to the new job, the managers in the engineering section where the employee worked asked him not to take up the position and he remained in his acting AFOW in the engineering section, in a mechanical role.  He continued to be paid the rate for the AFOW which he had been paid since March 2019.

June 2021:  He applied for a position as foreperson of works (FOW) in the mechanical section and he was placed number 1 on the panel.

September 2021:  He was appointed to the role of FOW in the mechanical section. 

This dispute is about the decision of the employer to place the employee on the starting point of the FOW incremental scale.  In line with the rules of promotion for craft grades, Mr Power argued that the employee should have been appointed “on a point to point” basis from the AFOW scale to the FOW scale.  Effectively, as he was on the 10th point of the AFOW scale, he should have been appointed to the 10th point of the FOW scale.

The employer’s position is that the employee’s “substantive post” was the AFOW non-mechanical role to which he was appointed in January 2021.  The Council’s rule is that an employee moving from a non-craft role to a higher position in a craft role is placed on the first point of the craft scale.

At the hearing, the employee explained the circumstances of his decision not to take up the AFOW role in January 2021.  When he signed the contract and was about to move from his office in the mechanical section to a non-craft section, he said that his phone “started hopping” and there was a concern about the effect of him moving.  There were several mechanical vacancies which had not been filled due to restrictions during Covid-19.  When he heard that the employee was about to move from the mechanical section, the senior engineer wrote to the employee’s line manager and asked him to keep the employee in his AFOW role in an acting capacity until the vacancies were filled.  To assist the mechanical section, the employee agreed not to move to the permanent job.

On behalf of the employee, Mr Power said that he and the union accepts the rules for moving from a non-craft role to a craft role, but, although he was successfully appointed to a non-craft job and he signed a contract accepting the job, the employee was never in a non-craft role.  Mr Power said that, as a favour to his managers, he remained in the acting AFOW position in the mechanical section and he did not transfer to the permanent job.  He was then successful in his application for a FOW job, which he commenced in September 2021.

The union’s position is that the rule that applies to a person transferring from a craft role to a higher position in a craft role applies to the complainant’s promotion in September 2021.  The rule provides that he should move to the corresponding point on the FOW scale.

In December 2021, the union submitted a grievance regarding the position taken by the Council.  As the outcome of the grievance, and a subsequent appeal has not changed the Council’s decision, in July 2022, the union submitted this dispute to the WRC for a recommendation under the Industrial Relations Act 1967.

The employer’s representative accepted that, in January 2021, although he had been appointed to a job as AFOW in a non-craft role, by agreement with local management, the employee remained in the mechanical section.  However, they argued that the AFOW non-craft role is supervisory in nature and an employee transferring from a non-craft role to a craft role is not entitled to a “point to point” transfer.  A copy of the rules was included in the employer’s and the union’s submission at the hearing and the rule is clear on this point. 

It is the employer’s position that the AFOW non-craft job was the employee’s substantive post when he was promoted.  When he transferred to the FOW role in in September 2021, they argue that he was correctly placed on the first point of the FOW craft pay scale. 

A copy of the rules for appointing people to new positions in an acting or permanent capacity was provided to me in advance of the hearing of this dispute.  The rules are clear and provide that an employee moving from a craft role to a higher craft role transfers to the point on the higher scale that corresponds with their current scale.  For an employee transferring from a non-craft role to a higher position in a craft role, they move to the first point on the new scale.

In January 2021, although the employee was appointed to a non-craft AFOW position, he never took up the job.  I do not accept that the non-craft AFOW was his “substantive” position, because the job he carried out every day from January until September 2021 was the acting AFOW in the mechanical section.  I think the non-craft AFOW could reasonably be described as the employee’s “nominal” role, but it was not the role from which he transferred when he was promoted to the FOW job in September 2021.  It is my view that the decision to place the employee on the first point of the scale for the FOW job is incorrect, because, by September 2021, he had spent 15 years in a craft role with the Council, and no time in a non-craft role.  To disregard his craft qualification, his years of experience in a mechanical role and his co-operation with management in January 2021, seems to me to be unfair and inconsistent with the objective of the rules on transferring to promotional positions.

I recommend that the Council place the employee on the point on the FOW scale that corresponded with his point on the AFOW scale with effect from September 16th 2021, the date of his commencement in the FOW role.

Promotion, incremental scales