High Court of Ireland Decisions

1. The Plaintiff seeks to restrain the Defendant from advertising the position of Harbour Engineer (however styled, and including the style of “ Operations Manger ”) which job he says has been his own job with the Defendant for several years.

2. Mr. Hogan SC for the Defendant submits that due to the amalgamation of the functions of the Limerick and Foynes Harbour Authorities and their areas the job which the Defendants are advertising does not, and certainly does not materially, overlap with the Plaintiff’s job, but comprises, rather, a new level of management which will involve from the, Plaintiff’s point of view a new reporting function.

3. Accordingly, it is submitted, that there can be no question of “less beneficial conditions of service” within the meaning of Section 39 (1) of the Harbours Act, 1996, which Section protects the pre-existing conditions of service of employees of Harbour Authorities who are transferred in circumstances such as apply to the Plaintiff in the present case.

4. Mr. Hogan further submits that the present is a clear example of a change in work practice rather than change in conditions of service.

5. The Plaintiff in his affidavit says that he was invited on 4th January, 2000 to apply for the new position of Operations Manager but subsequently became concerned that this new position would absorb or subsume his existing job or part of his existing job as Harbour Engineer. He was alerted to this by the terms of the advertisement which indicate five areas of responsibility for which the Plaintiff says he already has responsibility himself in his present job. In his replying affidavit Derry Gray who is joint interim Chief Executive of the Defendant’s says (at paragraph 4 (d) ):-

6. And further on he deposes:-

7. In response the Plaintiff amplifies his concerns under each of the headings already referred to by enlarging his account of his existing responsibilities under each heading and says:-

8. There is a further response from Derry Gray which points out the obvious namely that the Plaintiff does not have responsibility for the deep water port of Foynes, but accepts that the Plaintiff has management functions in regard to the 20 persons now employed (in the Limerick area) and a distinction is made between maintenance management (part of the Plaintiff’s job) and development management (part of the new job). The new Operations Manager will have responsibility for reconciling the two work forces which is not part of the Plaintiff’s job and the new manager will have overall responsibility for the Plaintiff’s job and will give instructions to the Plaintiff who now reports to existing higher management and gets direct instructions from them.

9. Despite the eloquent submissions of the Defendant’s Counsel I am left with the impression that there is a degree of overlap between the Plaintiff’s present responsibilities and those of the new Operations Manager, or at least that the parameters of each have not been thought through with the boundary now insisted on by the Plaintiff clearly in mind.

10. That being the case, I consider that the Plaintiff has made out a case for trial to the effect that the Defendant’s proposal would entail him having to accept less beneficial conditions of service within the contemplation of Section 39 (1) of the Harbours Act, 1996.

11. With regard to the balance of convenience it is clear that if the Defendant is permitted to continue with making the present appointment the Plaintiff’s position at trial will be devalued, possibly irretrievably and in a way that money could not compensate.

12. On the other hand the Defendant has statutory obligations, it must take account of changing circumstances and should not be kept waiting for an avoidably lengthy period - pending litigation - in a situation where it is disabled from carrying out its statutory functions.

13. In my view, given the clear averment in Derry Gray’s first affidavit to the effect that the only difference from the Plaintiff’s point of view in the new regime will be that he the Plaintiff will be reporting to the Operations Manager - a position emphasised by his Counsel at the hearing today before me - it should be possible for the Defendant to set out clearly a job description of the new position which will demonstrate clearly (possibly by referring to the job description of the Plaintiff’s functions) that the new position of Operations Manager will not intrude on the functions of the Plaintiff.

14. That being the case, I consider that if I were to prohibit the Defendant from advertising the position of Operations Manager unless and until such advertisement makes it clear that the position advertised involves no overlap with or incorporation of the functions of the Harbour Engineer (a position now held by the Plaintiff) I would not unduly frustrate the legitimate purposes of the Defendant and accordingly I am prepared to make an Order in those terms.