FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES: KERRY COUNTY COUNCIL LOCAL AUTHORITY (REPRESENTED BY LGMA) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00034114 CA-00045114 DECISION: 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 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.
NOTE Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary. |
