Worker

Employer

Anonymised Parties

A Worker

A Local Authority

Representatives

John G McDaid SIPTU

Keith Irvine Local Government Management Agency (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 - 00001942

31/10/2023

The claimant has been employed as a Plant Operator with the respondent since April 2022.He is in dispute with the respondent regarding taking home the local authority’s vehicle   when he finishes  work in the evening  and asserts that prior to his appointment it had been confirmed to him by HR (Mr.AW)and line manager  Mr.MH that he could take his vehicle home. The Council has denied that any such undertaking was given to the claimant and have instructed the claimant to leave the lorry at the S depot – the employer asserts that there is no provision in the claimant’s contract for any such arrangement and has asked that the claim be dismissed on the grounds that there is no case to answer.The claimant is adamant that in advance of his appointment he was told that he could take the lorry home as was  the practise with all of the other plant operators  and that singling him out amounted to less favourable treatment to his colleague operators.

In his complaint form , the claimant confirmed that he signed a contract in May 2022 as a plant operator and that since commencing the job he had been taking a vehicle home with him each evening – “ the same as other staff members have”.He submitted that on the 13th.Sept. 2022 , he was informed that the vehicle must remain in the S depot and that he could no longer take it home. He submitted that this rule has not been applied to his co-workers. He submitted that if he is on leave , the operator providing cover is permitted to take the vehicle home. The claimant submitted that he had complained about the matter to his employer but that no resolution could be found.

At the hearing the claimant said he believed this instruction from the Council was motivated by a social media post that captured the claimant and his colleagues on a night out and that it was subsequent to this that he was instructed to leave the lorry in the depot at night. The claimant was adamant that in advance of signing his contract he had checked the position out with his line manager and HR and was assured he could take the lorry home. The claimant said he could not see why he could not continue to drive the vehicle home or why it would be a problem. While it was acknowledged that the contract was silent on taking vehicles home , it was submitted that the union would confirm that taking the vehicles home was established custom and practise. The claimant said that all he was seeking was to be treated the same as everyone else. There were people at the S depot taking their vehicles home and all he was seeking was to be treated the same as they were .It was submitted that in the negotiations under the D Deal  anyone using a vehicle could take the vehicle home. It was submitted that there was no provision in the claimant’s contract that specified he had to use his own vehicle. It was submitted that the contract did not say that you cant bring the lorry home.

The claimant was adamant that on the date of signing his contract – the 23rd.May 2022 , every other plant operator in the S district were taking their vehicle home with them – as had been the custom and practise within the Council for years .He reiterated that when he engaged with HR prior to signing the contract he was clearly told he would not be treated any differently from his colleagues and that yes he could take a vehicle home. He submitted that in his discussions with AW where he sought clarification on bringing his lorry home , Mr.AW confirmed that the employer could not differentiate against him  and that he would have the same arrangement as the other Plant Operators. The union representative in attendance confirmed that he got a similar assurance .The claimant submitted that he was introduced to the S depot , on his first day  , by his Supervisor Mr.MH – he acknowledged  that the claimant would be bringing the lorry home that evening. The claimant referenced other drivers having to call to the homes of their colleagues to collect a lorry and return it to the colleagues home – some 15km in the wrong direction to work. The claimant says it only takes him 25mins to get to S area  and that if he lived in S he may still have to travel further to his base and consequently the employer’s argument did not stand up. The claimant asserted that there were plant operators taking vehicles home each evening distances of  40-80 kms .The claimant submitted that he had the same contract as all of the other Plant Operators listed in the Council’s submission with the exception of one Operator  who was appointed after him whose contract had a clause that provided for the lorry remaining at the depot.

The complaint was submitted to the WRC on 31st October 2023. The complaint  stated as: “…I signed a contract in May 2022 as a plant operator. Since commencing this job I have been taking a vehicle home with me each evening, the same as other staff members have. On the 13th September 2022i was informed that the vehicle must remain in the yard in S each evening and I could no longer take it home. This rule has not been implemented on any of my co-workers. If I am on leave the cover driver is allowed to take the vehicle home….”

 2. Background

 2.1. The claimant has been employed with the Council since April 2022 in the position of Plant Operator in Roads & Transportation,  with a base in F Depot. In May 2022 the claimant was appointed as a permanent Plant Operator with assignment to Roads & Transportation in S Roads Municipal District, based in S Depot per his contract of employment (Appendix 2). His initial base was identified in his contract of employment as S Depot (Clause 6).

 2.2. On 13th September 2022 the Council advised the claimant that he could not take his work vehicle home and was instructed to leave the lorry back in the yard the following evening (Appendix 3). On 21st September 2022 the claimant raised a grievance with the Council, in relation to him being initially permitted to use the Council vehicle to travel between home and work and was subsequently advised that this could not continue. The claimant alleged that he was being treated differently to all his co-workers. The claimant escalated this grievance to the Senior Engineer on 30th September 2022 as he had not received a response in 7 days from his previous letter. (Appendix 4)

2.3. On 6th October 2022, the Roads Area Divisional Manager replied to the claimant that “having looked into the matter raised in both letters, I can confirm that in your contract of employment as Plant Operator, there is no reference to transport being provided to your place of work, and as such there is no entitlement for you to drive the lorry home each evening. I am advised by HR that this was explained to you in early May prior to your signing the PO contract. All other plant operators within the County are not taking a vehicle home with them, and I am not of the view that you are being treated unfairly” (Appendix 5). The claimant responded on 12th October 2022 (Appendix 6). The Council replied on 20th October reaffirming the position and that if the claimant was dissatisfied with the determination he could appeal and escalate the determination in accordance with the Council’s Grievance Policy (and provided this Policy for information) .

2.4. The claimant appealed the decision on 7th November 2022 (Appendix 8). The Appeal was considered and a decision not to uphold the claimant’s grievance was communicated to him on 21st December 2022 (Appendix 9) stating “It is the case that the Council retains the right to ask Plant Operators to take an item of plant home with them if this is of operational benefit such as that their home is closer to their work site for the next day or to a location where a delivery is to be made or accepted, etc. In your case the decision of management within the Roads Service in the MD that in general there is no operational benefit to ask you to take the lorry home with you each evening…in summary my determination is that the position adopted by management within the Roads Service in the MD in relation to this matter is correct.”

 2.5. The claimant had submitted his complaint to the WRC on 31st October 2023.

 3. The Council’s Position

3.1. The claimant is a full-time employee of the Council where he was recently offered and accepted the position of Plant Operator, located in the Roads Service Supervisors (RSS) Area of S Municipal District (MD).

 3.2. The core duties of a Plant Operator include driving and operation of a range of vehicles, plant, machinery and equipment, such as lorries, pickups, tractors, excavators, diggers, dumpers, rollers, tar sprayers, hedge cutting equipment, winter maintenance equipment etc. Plant Operators are assigned to a Depot and payment for travelling to and from their Depot in the morning and evening, is not part of their contract.

 3.3. Whilst the claimant’s contract of employment does not provide for the use of a vehicle for travelling to and from work, he has alleged that some other Council employees take their vehicles to and from work and maintains that accordingly he has an entitlement to drive the lorry to and from work every day.

 3.4. In his WRC Complaint, the claimant has alleged that he is being discriminated against under the Employment Equality Act. Nothing has been stated in his WRC Complaint as to by what ground he is being discriminated, other than stating it is in relation to ‘Conditions of Employment’ and equal status with his co-workers.

 3.5. The Council assert there is no entitlement to take a lorry home, but that some Plant Operators are given permissions to do this based on operational reasons, such as having the vehicle and staff member available at short notice for out of hours call outs, winter service, transportation of staff & materials direct to site for immediate starts, collection of materials from suppliers/Machinery Yard etc. This decision is made by management in relation to each of the Plant Operators assigned lorries.

3.6. There are 19 Plant Operators working in the Roads Dept. of the Council, each uniquely assigned to a Depot in one of the 19 Roads Service Supervisors (RSS) Areas of the 5 Municipal Districts (MD) in the County . The breakdown of Plant Operators per MD is set out I the table submitted .

 In the process of appointing Plant Operators, there is always an aspiration to appoint an individual who lives within the Municipal District and within an approx. thirty minutes travel distance from the assigned Depot, such that they are in a position to respond to emergencies if required, and to work in other adjacent RSS areas if required. (The application form for Plant Operator states that “You will reside in the area in which your duties are to be performed or within a reasonable distance thereof.”)

 3.8. This however is not always possible, as appointments are made from a panel, formed following ranking in an interview process, and the situation may arise whereby an individual may be offered a position outside of the Municipal District where they live. In such cases, every attempt is made by the Council to reassign them to vacant positions within the MD where they live, should such a position become available in the future.

3.9. Following interview, the claimant subsequently became top of the Plant Operators panel, whereby on 29th April 2022 he was offered the position of Plant Operator in the adjacent MD of G. The matter of not taking the lorry home was discussed between HR and the claimant in the course of deliberations for this position before a subsequent Plant Operator position became available in S, for which he expressed an interest, was offered a position and subsequently accepted on 12th May 2022. Since both of the positions in G and S were outside of the L MD where the claimant resides, it was made clear that for operational reasons he would not be granted permission to drive the lorry to and from work in the mornings and evenings.

 3.10. On commencing the position, the claimant drove the lorry home daily before being reminded of his contract and being requested to leave the lorry in the yard in the evenings, which he has done under protest since 13th September 2022.

 3.11. The practice in the Council has been that taking a council vehicle home each evening is done where it is likely that there would be operational benefits for the Council from such an arrangement. This can include having the vehicle and staff member available at short notice for out of hours call outs, winter service (including being accessible to both rota’d drivers. In the course of implementing the Winter Maintenance programme between mid-October and the following April, the lorry is required in the Depots from early in the morning, and may be driven by alternative drivers rostered on a Rota to deliver the required salting/gritting of the network.), transportation of staff & materials direct to site for immediate starts, collection of materials from suppliers/ Machinery Yard, etc.

 3.12. In the absence of any operational benefit, permitting a council vehicle to be taken home each evening would simply be providing an employee with transportation to/from work each day at public expense.

3.13. It is acknowledged that some lorries are taken home each evening by drivers, however in all cases the driver either lives in the Municipal District or in close proximity to it. In such circumstances the lorry will be available for speedy deployment if required.

 3.14. Based on operational requirements, the Council make a decision on an individual basis, as to who is allowed to take the lorry home at night, whilst maintaining the default position that should situations change, then the lorry is to be parked overnight in the Depot. This is reflected with the 19 Plant Operators where only those working within the Municipal District that they live and based on operational requirement, are permitted to take the work vehicle home. Where they are not based in the Municipal District that they live or where operational requirements don’t require it, they do not take the work vehicle home:

 3.15. The table also indicates that for four Plant Operators, where they live outside the MD, the decision had been made by management, that the lorry be left in the yard for use by relief drivers or emergency purpose. In relation to one Plant Operator living outside the MD where he works (D-D ), the distance from his home to the MD border is only 5.9km, such that a timely response to an emergency can be implemented within the RSS Area. (In this particular RSS Area, the Depot is not centrally located.), and accordingly the Council decision is that this driver takes the lorry home; similar to the decision in relation to the claimant.

Conclusion

 It is on this basis that the Council would ask the Adjudicator to dismiss the current complaint where there is no case to answer.

 At the hearing , the Council’s representative asserted that this was not a terms and conditions issue and that it was a matter for the employer to decide whether or not a lorry comes home  - the arrangement could constitute a benefit in kind  in terms of revenue if it was deemed to be a benefit. It was submitted that the employer had engaged with AW who raised the matter with AMCF who was quite clear that the vehicle could not be taken home.It was submitted that if a vehicle were to be provided it would be specified in the contract of employment and there was no such provision in the contract.

It was submitted that if staff bring vehicles home for personal gain , there were revenue requirements. It  was submitted that by referencing  the D deal , the claimant was relying on historical agreements that were of a collective nature.It was advanced that a significant number of staff were not permitted to bring Council  vehicles home.The respondent denied the assertions of the claimant that the instruction to leave the vehicle at the depot was related to a social media post.

I have reviewed the submissions presentations and documentation submitted by the parties.

I note the contract signed by the claimant and employer is silent on the matter of council vehicles being brought home as are the contracts applying to all but one of the plant operators listed in the claimant’s submissions. While the claimant is adamant that he was advised by AW that he could take his vehicle home, the hearing was advised that AW consulted with Mr. AmcF  - who had made it  quite clear that the claimant could not bring his vehicle home. The hearing was advised that Mr.AW denied that he told the claimant he could take a vehicle home. The claimant when pursuing his grievance asserted that when he signed the contract all other operators were taking their vehicles home .I accept the claimant’s contention that the respondent has not provided a convincing explanation as to why the claimant was allowed bring his vehicle home  for a number of months from commencement  to the 13thSeptember 2022.The Council have adopted the position that there is no provision in the claimant’s contract  about transport being provided to the claimant’s place of work and have sought to distinguish between the claimant and his co workers by asserting that  there is no operational benefit accruing to the Council from the claimant taking his vehicle home unlike his co workers .

I note that Mr.AW was not in attendance at the hearing to give his account of the exchanges with the claimant. The post hearing correspondence submitted by the employer does however illuminate the history and background to this dispute.

On the 3rd.May 2022 , Mr.BMcF corresponds  with Mr.AW seeking confirmation  that  the claimant and JG  accepted the posts “having been made aware of “ the 2019 decision that “ unless a PO lived nearby their assigned Depot then there was no entitlement for the PO to have DCC transport for getting to and from work”…..If you need anything further sure let me know however it would be important that they are refreshed on this condition prior to appointment”.

.Mr.AW replied as follows :

“I spoke with the claimant, I explained the situation however he is of the opinion that the transport should be provided. For your info, there is no reference in my offer to transport being provided and the base is stated as the relevant depot…Furthermore , the PO contract will state the relevant base as the base for travel purposes and no reference is made to a vehicle being provided….(If a vehicle was provided , this would be stated clearly in the contract”).

It would appear that had the employer so wished  a clause could have been inserted  into the contract to specify that lorries could not be used for travel to and from  home but this was not done in the case of the claimant.

Having reviewed the chronology of correspondence between the parties, I do not accept the employers argument advanced at the hearing that “ this was not about a condition of employment”. This is at odds with the correspondence between BMCF and AW dated the 3rd.May 2022 which states “ If you need anything further sure let me know however it would be important that they are refreshed on this condition prior to appointment”. I have taken account of the employers reliance on the absence in the contract of employment of a reference to transport being provided to your place of work – at the same time  I must have regard to the fact that  it is not disputed that  such  a clause is  not contained in the contracts of the claimant’s colleagues who bring their lorries home. The post hearing documentation furnished to the WRC suggests that the 2019 decision on lorries being taken home was not  refreshed or clarified to the claimant in advance of signing the contract as had been recommended by BMcF .  It would be reasonable to assume that the respondent did not amend the PO contracts in 2019 to provide for this revised policy on transport for newly appointed PO’s.I consider it also of note that no cogent explanation has been advanced by the respondent for not challenging the transport arrangements observed by the claimant for the first number of months of his employment when he brought his vehicle home.  In all of the circumstances I have concluded   that it was not unreasonable for the claimant to assume that taking his lorry home was an implied term of his contract  and that  the claimant’s   expectation of being permitted to bring the lorry home was reasonable given the backdrop outlined above.

In light of all of the foregoing, I am upholding the complaint.