About this case:

• Citation:
  ADJ-00016896
• Judgment:
  External link
• Court:
  Workplace Relations Commission

Stating that the employee’s dissatisfaction was understandable, Adjudication Officer Ray Flaherty said that the local authority should also pay €4,000 to the employee as a goodwill gesture and in recognition of his “good and loyal service over the last 17 years”.

Background

The complainant commenced work with the respondent local authority in June 2002. He received 12 contracts between 2000 and 2009, which all confirmed his position as temporary clerk of works. Each contract referred to or reflected a salary equivalent of point 5 of the clerk of works salary scale (i.e. €40,533 pa plus an all-inclusive allowance of €7,800.24 pa). 

In May 2009, the complainant received a contract of indefinite duration (CID) for the position of site technician Level II/clerk of works. The contract stated that he would be paid at the site technician Level II salary of €47,823 pa (the previous allowance for travel purposes having been replaced due to the supply of a vehicle).

In January 2017, the complainant wrote to the local authority noting that he had not received any increases in his salary since 2002 and that his colleagues were moved up the scale on signing new CID contracts, and requested for an investigation into any anomalies in his salary. The local authority refused to investigate, and ultimately the complainant sought the assistance of his trade union.

Talks between the trade union and the local authority were unsuccessful, leading to the complainant submitting a claim under the Industrial Relations Act 1969 to the Workplace Relations Commission.

Preliminary issue

The local authority contended that if the complainant had an issue with the awarding of his CID under the Protection of Employees (Fixed-Term Work) Act 2003, he should have raised his concerns at the time the contract issued in May 2009. Since he did not raise any issues about his CID in 2009, the local authority said he was out of time, and the Adjudication Officer had no jurisdiction to hear the case.

Adjudication Officer Flaherty explained that the complainant had raised his complaint under section 13 of the Industrial Relations Act 1969, not under the Protection of Employees (Fixed-Term Work) Act 2003. As such, Adjudication Officer Flaherty said the question of jurisdiction related to whether he could hear the complaint under the Industrial Relations Act 1969.

Section 13(2) of the Industrial Relations Act 1969 states:

Adjudication Officer Flaherty was satisfied that the complaint was consistent with this provision. He said the essence of the claim related to the local authority’s failure to recognise the complainant’s service and experience in the 17 years he had been in employment with them – and the complainant’s dissatisfaction in this regard related equally to the periods before and after he was provided with the CID in May 2009.

Stating that it was clear the complainant thought there were anomalies concerning his salary and sought to have these investigated as an individual trade dispute under the Industrial Relations Act 1969, Adjudication Officer Flaherty was satisfied that the complaint was a valid dispute with his employer and that he had jurisdiction to hear the complaint.

The Substantive Issue

Adjudication Officer Flaherty said it was clear the complainant felt aggrieved that while working for the local authority for 17 years, there had been a failure to recognise his service and/or his experience in salary terms. Adjudication Officer Flaherty said it was not difficult to understand this dissatisfaction, and how the complainant’s dissatisfaction was “further increased” with the perception that he “is being treated less favourably than colleagues in a similar position”.

While noting that the local authority had concerns in relation to the creation of CIDs pursuant to the provisions of the Protection of Employees (Fixed-Term Work) Act 2003 and protecting the position in that regard, Adjudication Officer Flaherty said the dispute could be resolved by the application of “a degree of goodwill on the part of all parties”.

Adjudication Officer Flaherty said the anomaly concerning the complainant’s salary “could be resolved by placing him on point 8, of his substantive grade, that of site technician Level II”.

Considering all the evidence, Adjudication Officer Flaherty recommended that the complainant be immediately placed on point 8 of his grade – i.e. top of the salary scale for the site technician Level II grade. Adjudication Officer Flaherty recommended that no retrospection should apply, but that the Local Authority should make a payment of €4,000 to the complainant, as a goodwill gesture and in recognition of an employee who has given good and loyal service over the last 17 years, on the basis that he accepts this recommendation as full and final settlement of his grievance.

• by Róise Connolly for Irish Legal News