Worker

Employer

Anonymised Parties

A Part-time Firefighter

A County Council

Representatives

Andrea Cleere SIPTU

Keith Irvine LGMA

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 - 00001218

30/03/2023

The Worker is a part time retained firefighter and applied for a permanent position as a Library Facilities Attendant and was successful with his application. However, the Employer has stipulated that he must relinquish his part time firefighter role due to the demands of the Library Facilities Attendant position and the Worker has alleged that this is an unfair stipulation on him taking up the post. The worker has accepted the post of Library Facilities Attendant subject to his appeal on the issue being adjudicated upon and the post is filled on a temporary basis at the moment.

The matter which gave rise to the case concerns the Workers successful application and competition for the post of Library Facilities Attendant with the Employer with whom the Worker is a retained Fire Fighter. He is therefore seeking dual roles with the Employer, all internal procedures have been exhausted.

The Worker successfully carries out his duties as a Retained Fire Fighter on behalf of the employer, this is a role he is very dedicated to and enjoys carrying out very much. The Worker applied for the role of Library Facilities Attendant with the employer, he performed well at the interview stage and was subsequently placed number one on the panel.

In October 2021 the Worker was offered the position of Library Facilities Attendant, the Worker was delighted with his achievement and ready to accept the role offered to him. The employer forced an ultimatum upon the Worker whereby he was advised that he would have to resign from the Retained Fire Fighter role if he want to take up the position of Libraries Facilities Attendant.

The Worker was completely taken aback by this action as he knew of several colleagues that were employed to two roles by the employer which is commonly referred to as dual employment.

Given the nature of the Retained Fire Service it is common practice that Fire Fighters are employed elsewhere and it is common case that many of the Retained Fire Fighters are employed by the County Council in dual roles.

The Worker did not turn down the role, in fact he advised the employer he was accepting it and he referenced a colleague who held the exact same position of a Library Facilities Attendant while also being employed as a Retained Fire Fighter by the same employer.

The matter was raised on behalf of the Worker with the employer by SIP TU however the position of the employer did not change despite there being several precedents referenced.

It is common fact that a precedent has been set whereby a colleague of the Worker employed as a Retained Fire Fighter was employed as Library Maintenance Attendant by this employer.

It was also the Workers position that another colleague of the Workers who is employed as a Retained Fire Fighter is also employed as a Library Maintenance Attendant by the same employer in the same location.

It was the Workers position that it is wholly unacceptable that the employer is applying an inconsistent practice across the employment and is essentially treating workers differently in the same set of circumstances.

The Worker maintained that it is hard to comprehend that at National level the parties to this dispute, the Worker, SIPTU, the employer and the LGMA has very recently signed up to an agreement which fundamentally supports the dual employment of Retained Fire Fighters.

The County Councils must lead the way and set a positive and constructive example in providing dual employment for Retained Fire Fighters and develop policies which are supportive and proactive.

A policy document from the Labour Court which has been instrumental in the negotiations in trying to resolve the recent Industrial Relations dispute between in parties states the following:

“In addition, every urgent effort should be made to fill all current vacancies in the service including all vacant promotional positions as well as vacancies arising from the implementation of this Recommendation. In that context the  management side should engage with Local Authority employers to establish whether there exists reluctance or resistance within Local Authorities to having staff of the Authorities taking on the role of Retained firefighter and, if such a resistance or reluctance is found, to engage with those Authorities to ensure that the staffing of the service is supported by the general policies of the Authorities as regards their staff becoming part of the service. "

The manner in which the employer is behaving towards a Worker of the Retained Fire Service flies in the face of what is being advocated by the state machinery, this blatant disregard is quite bizarre for a public sector body.

It is widely accepted that the Retained Fire Service is struggling to recruit Workers into the service yet here we have an employer who is handing out ultimatums which will reduce the service even further if carried out.

The Worker Representative maintained that the Worker is entitled to take up the role of Library Facilities Attendant as he is the successful candidate and the rightful post holder.

It is difficult to understand the logic and actions of the employer in not allowing the Worker to have dual employment within the service particularly when precent has been set by at least two named colleagues. The rationale is even further compromised when the context of the last number of months is taken into consideration. The Worker wants to commence the role which he rightly should have been allowed to commence in October 2021.

The complaint was submitted to the WRC on 30th March 2023. The complaint is stated as:  “I wish to appeal the outcome of an internal grievance.”

The Worker commenced employment with the Council on the 24th February 2020 as a Temporary Part-time Retained Firefighter. The Worker secured a permanent contract on the 14th March 2020 as a Permanent Part-time Retained Firefighter.

The Worker applied for a Library Facilities Attendant post in August 2020 and in October 2021 was offered a permanent Library Facilities Attendant post. In order to take up this permanent post, the Worker was advised in writing by letter dated 20th October 2021 that he would be required to resign from the Fire Service. In October 2021, SIPTU emailed HR raising this as an issue, which was acknowledged on the 4th November 2021.

On the 4th November 2021 the Library Service confirmed: ‘The Library service requires the presence of a full time Worker of staff for the library attendant post”

The assigned Library is the busiest service point – with the largest component of school children and youths using this branch. This cohort of users require a lot of supervision and the full time presence of an attendant. This supervision and presence of an attendant is required on a daily basis and is not a function that can be done by other staff as they have desk duties.

Daily cleaning is a necessary task which must be undertaken by the attendant.           

Cultural services already have had the experience of having a staff Worker who is a retained fire fighter (in the Museum) –this has not worked well due to the amount of times a retained fire fighter is absent from duties due to mandatory training, sometimes on call-outs of more than once per day and also with long absences when on a call-out and no indication of when returning to work. This has resulted in significant impacts on service delivery including closing access to a floor, lunch time closures and spot closures.

The library accommodates up to 100 programmed events in any given year, some of these occur at night – requiring the presence of the attendant to help out with fitting out the space and being present for the duration of an event. Library programming would not be possible if the attendant was called out and gone for extended periods.

The Library Attendant is responsible for supervision and the filling out of the branch H&S logs – if not present or called away suddenly this duty may go undone. This is of high relevance in the case of accidents. If an accident should occur and we have not adequately assessed the risks of not having a full staff complement it could leave us open to claims and court appearances. 

The role of library attendant is mixed and includes security of the building including supervision of library patrons, cleaning duties and assisting in running of events. The library attendant needs to be present at all times on site in order to carry out these duties.

On the 11th November 2021, HR wrote to SIPTU confirming that the Council has and will continue to support individuals where roles are suitable and can be accommodated but in this instance, it is not possible to accommodate the Worker.

On the 15th December 2021, the Worker confirmed over the phone that he would not be accepting the Library Facilities Attendant post and he was requested to confirm same in writing.

On the 21st December 2021 and the 7th January 2022, the Council emailed the Worker requesting him to confirm by email his decision regarding the Library Facilities Attendant post and on the 11th January 2022  the Worker emailed the Council stating 

‘As I have previously stated I am ACCEPTING the job of library facilities attendant in the library and will not be resigning my position as Firefighter. There are 4 Firefighters in my station alone that work in council jobs with the County Council while also working as retained firefighters and many more doing likewise in the county and there is no reason why I can’t do the library job and be a firefighter at the same time as a previous Firefighter successfully did the same job for years.’ 

On the 11th January 2022, the Council wrote to the Worker confirming that SIPTU had raised his case at a meeting and that it was confirmed that the post of Library Facilities Attendant was full-time and that the fire service role couldn’t be accommodated due to the nature of the role.

On the 20th January 2022, SIPTU wrote to the Council requesting further consideration of the matter.

On the 16th February 2022, the Council wrote to SIPTU confirming its position regarding the request for dual employment in this case which couldn’t be accommodated due to health and safety requirements. These health and safety matters were reviewed, and risk assessed by the Health & Safety Officer. 

On the 8th March 2022, the Council wrote to SIPTU confirming that the vacant post would be offered to the next available candidate. The post was filled on 13th June 2022.

 It is noted that the Worker has detailed the complaint as ‘I wish to appeal the outcome of an internal grievance’. It is assumed that the complaint relates to the Worker’s application for Library Facilities Attendant post in August 2020.

The Council confirmed the following regarding this dispute

The Worker is a retained Firefighter who applied for a Library Facilities Attendant post in August 2020.

The Worker was offered the post of Library Facilities Attendant in October 2021 and was advised that in order to take up this full-time position, he would need to resign his Retained Firefighter post.

Library Service Management confirmed that the post was full-time and the demands of the fire service duel role could not be accommodated due to the demands of the Library Facilities Attendant role and the significant number of health and safety risks that could arise in the Library Service.

The Council confirmed its position to the Union on several occasions and also confirmed by email dated 8th March 2022 that the vacant post would be offered to the next available candidate, who took up the role on 13th June 2022.

Security and Safety are the key aspects of the role which require that this post cannot be released to other roles; this has been critical in recent years where public activism has escalated. An example of this was in July 2023, where it was reported that in a Kerry County Council Library a disturbing incident occurred where anti-LGBTQ+ protesters aggressively pushed their way into a room where children were present during a reading event as part of Kingdom Pride month. This is in addition to a spate of targeted protests at Cork City Library and Limerick Library, resulting in several closures. Due to these risks, the Council are not at liberty to release staff from active duty in the library.

 The role of Library Facilities Attendant is a critical role in the Library Service. The Attendant must be in attendance at all times due to the extensive nature of the role in the library and therefore given the nature and demands of the Retained Firefighter role, it is not possible to accommodate both roles.

The Council acknowledges that there are a number of Firefighters working in other positions within the Council, in addition to the Retained Firefighter role, however the Council would assert that these positions can accommodate dual employment in circumstances where the employee needs to leave the building at short notice.

The Council requested that the Adjudicator find in its favour, where the Worker cannot be accommodated and released to undertake firefighting duties while employed in the Libraries Facilities role.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  There is no doubt that there are two equally compelling arguments in this dispute. The Worker is currently a retained fire fighter and wishes to continue this role in addition to the role of Library Facilities Attendant. Employers, particularly, public service bodies, have an obligation to create the circumstances where staff can be retained fire fighters. However, equally, in this case the Employer put forward compelling arguments that the role of Library Facilities Assistant requires the constant presence of the employee in the post. I do not conclude that these reasons were exaggerated by the Employer to deny the Worker the opportunity to be a part time firefighter in addition to his substantive post.

I have examined the role of the Library Facilities Attendant and also the actual amount of call outs that may be required in the post based on prior experience. Key elements of the role include the following requirements and duties;

“Be available to work 39 hours a week including evenings & weekends.

Opening and closing of premises, and in this regard you will be required to be on duty prior to the official opening hours to carry out duties such as switching on lights, heating, etc.

Set and unset alarms as appropriate.

Responsibility for security of premises.

Acting as key holder.

You are responsible for your personal alarm and ensuring that false alarms are kept to a minimum.

Responsibility for cleaning of premises including windows and bathrooms, dusting of shelves. To vacuum all carpets and to maintain and clean all floors on a daily basis. Ensure all toilets, wash-hand basins, tiled areas, canteens, etc. are clean and supplied with soaps, toilet paper, etc.

Empty all litter baskets daily and dispose of refuse, leave out bins for collection and empty them.

Maintenance of open spaces surrounding the Library.

Making collections & deliveries as required.

Checking fire doors and keeping passageways clear. Ensuring that fire alarm system, bells, extinguishers, hoses, etc. are operational at all times and undertake duties as required including checking and recording of same in Fire Register.

Monitoring and control usage of electricity, heating, hot water, etc.

Attending as required, outside the hours set on the general conditions, to provide attendance at meetings or other events, or as directed by the Executive Librarian / Line Manager.

Moving exhibition screens, furniture, equipment & stock as required.

Reporting any serious defects, repairs required, etc. in good time to the County Librarian.

Ensure compliance with the County Council’s Occupational Health & Safety Management System and Safety Statement.

Ensuring the library can be enjoyed by staff & customers without risk to their personal safety.

Organising material for re-shelving and responsibility for the shelving of books.

Supervision and control of public particularly in the children’s and teenage section of the library and ensure noise level is kept to a minimum.

Maintain a good customer service relationship with members of the public visiting the library.

Queue management and advising public on service points.

Preventing misuse of library equipment and that library facilities are not interfered with or damaged.

Carry out instruction from County Librarian or his/her nominee and perform any other duties, directions and instructions that may be assigned to you.

The person employed will be required to perform assigned duties exercising a duty of care, in the interest of safety of oneself, fellow employees and the general public, at all times in compliance with the County Council’s Health & Safety Management System. 

The post-holder will be required to work a 39-hour week (or less where a person is appointed in a part-time capacity). These hours will involve morning, evening and some weekend work. “

I have examined the correspondence between the parties over a period of time prior to the Hearing and without restating it here, the Employer has set out in its correspondence key safety and security roles of the post, that if left unattended, could cause considerable safety, disruption or security issues for the Employer.

I have also examined the amount of anticipated call outs during working hours and the evidence supplied for the last three years by the Employer suggest that the job holder would be required to attend around one call out per day while at work. The average time for a call out is approximately one hour.  Of course the times and duration of future call outs are unknown and could coincide with either opening and closing times of the Library or when some security, event or facility maintenance exercise is essential. The necessity for the Employer to plan with confidence that the premises will be open and secured safely for around 100 events a year is also critical.

I have also examined precedent for my Recommendation and am particularly guided by the Labour Court decision number LCR22831 heard on October 3rd 2023.  The circumstances of that case are somewhat similar to this dispute and also involved an employee of a County Council. The Court concluded the following;

“DECISION:This is an appeal by SIPTU of an Adjudication Officer’s Recommendation ADJ-00034144 on behalf of a worker with Kerry County Council. The Adjudication Officer recommended that Kerry County Council put in place a clear policy regarding the eligibility of employees taking up roles with the Retained Fire Service. The matter in dispute concerns a claim that a worker be allowed to undertake dual employment in the roles of Retained Fire Fighter and Waterworks Caretaker.

The worker is employed with Kerry County Council since 2011 and was originally appointed to the position of Retained Fire Fighter. In 2017 he was successful in a competition for the position of Waterworks Caretaker. At the time he was advised that he could not continue to be employed as a Retailed Fire Fighter, as both roles required him to be on call. The worker resigned his position as a Fire Fighter in order to take up the position as Waterworks Caretaker. In August 2019 the worker once again applied for a position with the Fire Service and was placed first in the panel.

The Union submits that the worker was compelled to resign his Retained Fire Fighter position in 2017 when others were left to continue in dual roles. It submits that the worker should be allowed to undertake the role of a Waterworks Caretaker and a Retained Fire Fighter at the same time, and that no objective reasoning has been provided by the Council to deny him dual employment.

The Council acknowledges that historically it facilitated dual employment within the Water Services department, however, it changed its policy as Waterworks Caretakers are key staff in the delivery of water and wastewater and it could no longer facilitate dual roles. It acknowledges that when the policy changed two workers were allowed to retain their dual employment status until their retirement/resignation. Other workers in the Council are allowed to maintain dual employment where the nature of their roles allow them to be released to respond to alerts if and when required.

The Council submits that because of the critical nature of the retained fire service it is not in its interest to obstruct dual employment where possible, however, it would be negligent in its duty if it overrides its obligations in one critical service to support another critical service.

The Court has given careful considerations to the oral and written submissions of the parties. The conditions of employment for retained firefighters provide that a firefighter may be employed by another employer, where the firefighter can ensure that the employer can facilitate their release from the role once alerted by the Fire Service.

The worker in this case is involved in the delivery of a safety critical service in his substantive role as a Waterworks Caretaker, which requires that he is on call. The Court notes that when he applied for the role of Retained Firefighter in 2017, and again in 2019, he was clearly informed by the Council that given the nature of the Waterworks Caretaker role dual employment was not possible.

In the Court’s view, the Council has outlined clear and objective grounds to explain why it cannot facilitate dual employment in the safety critical roles of Waterworks Caretaker and Retained Fire Fighter. The Court notes that the Council has engaged with Uisce Eireann, who is responsible for the management and direction of water services staff, and that body has confirmed that dual employment as a Waterworks Caretaker and as a Retained Firefighter cannot be supported in this instance. The Court further notes that if the workers’ substantive post with the Council changes in the future, the Council is willing to review the situation.

Having regard to the submissions made, the Court can see no basis for supporting the Worker’s claim at this time.

The Adjudication Officer’s recommendation is upheld.

The Court so decides.”

Having considered the essential duties of the role that require the occupant of the position to be in attendance at key times, the high probability of a call out being required each day for approximately one hour at unknown times and the disruption that would cause to the public and other Library staff and the Labour Court precedent,  I find in favour of the Employer and do not recommend that they change their stated position, in this particular case. I recommend that the Employee be given until December 31st 2023 to make a decision on whether he will take up the post of Library Facilities Attendant and if he elects to do so then the date of commencement will be determined by the Employer to facilitate a transition with the current fixed term employee who currently occupies the role.

Trade Dispute