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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gray v Craigavon Borough Council [2009] NIIT 1413_08IT (18 June 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1413_08.html
Cite as: [2009] NIIT 1413_08IT, [2009] NIIT 1413_8IT
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THE INDUSTRIAL TRIBUNALS



CASE REF: 1413/08




CLAIMANT: Maurice Gray



RESPONDENT: Craigavon Borough Council




DECISION

The unanimous decision of the tribunal is that:-



  1. The tribunal does not find the claimant’s claim that the respondent made an unauthorised deduction from the claimant’s wages, in contravention of Article 45(1) of the Employment Rights (Northern Ireland) Order 1996, is well-founded.


(2) The claimant’s claim is therefore dismissed.



Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC



Appearances:

The claimant was represented by Mr J O’Neill, Solicitor, of Thompson McClure, Solicitors.

The respondent was represented by Mr S McQuitty, Barrister-at-Law, instructed by Walker McDonald, Solicitors.


Reasons


    1. The claimant presented a claim to the tribunal on 30 September 2008. In his said claim form, the claimant claimed, in particular:-


“10.3 I believe there is an ongoing and unlawful deduction from my wages. This is due to the fact that I am not being paid the recommended rate under the Northern Ireland Joint Council for Local Government Services for a Waste Disposal Operative. The grade is Level 4 and the Council are paying me at a Grade 3. This has been ongoing from 2001 ... .”


    1. The respondent presented a response to the tribunal on 26 November 2008. In the response, the respondent denied liability but stated, in particular:-


“5.2 The claimant is of the opinion that he should be paid that of Grade 4 Waste Disposal Operative. The duties in the 1998 NJC National Job Outline for a Waste Disposal Operative includes ‘driving of associated vehicles’. The claimant states that he regards the operating of a compactor at his place of work as driving. The Council holds the view that the compactor is plant and equipment as it does not require a driving licence to operate and cannot be driven on the public road. This view is supported by guidance from the Health & Safety Executive who in their Safety Guidance Booklet ‘Operating Civic Sites Safely’ referred to compactors as machines. There are currently no vehicles on site which the claimant has to drive in performing his duties.”


    1. There was no dispute between the representatives that the claimant’s claim was a claim, pursuant to Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), which provides:-


“An employer shall not make a deduction from wages of a worker employed by him unless –


  1. the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract; or


  1. the worker has previously signified in writing his agreement or consent to the making of the deduction.”


Article 45(3) of the 1996 Order further provides:-


“(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”


    1. There was no dispute between the representatives that the central issue to be therefore determined by the tribunal was:-


“Whether the claimant was properly paid by the respondent at the level of pay for a Grade 3, as he had been prior to the presentation of his claim, or whether he should have been paid, at all material times, at the level of pay for a Grade 4.”


    1. The representatives agreed that, if the respondent was found by the tribunal to have made an unauthorised deduction, pursuant to Article 45(1) of the 1996 Order, the total sum payable to the claimant for the relevant period, from in or about 2001 to the presentation of his claim, was £4,088.64 (gross).


    1. At the outset of the hearing, after submissions by the representatives, it was agreed, having regard to the matters set out in Article 6(5) of the Industrial Tribunals (Northern Ireland) Order 1996, it was appropriate for the claimant’s claim to be determined by me, sitting as a Chairman alone, and not by a full tribunal. (See further Gladwell v Secretary of State for Trade & Industry [2007] ICR 264.)


    1. The tribunal heard oral evidence, on behalf of the claimant, from the claimant himself and Mr William Ronald Conn; and on behalf of the respondent, Paul Topley.


    1. The tribunal made the following findings of fact, insofar as relevant and material to the determination of this claim, as set out in the following sub-paragraphs.


    1. The claimant, for the purposes of these proceedings, was employed as a Civic Amenity Attendant (Amenity Attendant) by the respondent from in or about December 2001. Since that date he has been generally employed by the respondent, in that position, at the respondent’s civic amenity site in Portadown. He has been required, on occasion, by the respondent, to provide cover, as an Amenity Attendant, at other civic amenity sites operated by the respondent.


Under his job description the claimant, inter alia, was required, insofar as relevant and material, to carry out the following duties:-


“Civic amenity site duties


  1. Responsible for opening and closing the civic amenity site at the appropriate times.


  1. Assist the public to dispose of refuse and bulky items in the skips.


  1. Collect and register all charges in respect of commercial or industrial refuse deposited at sites.


  1. Responsible for keeping the entire site in a clean condition including the use of disinfectants and cleaning materials as necessary.


...


  1. Responsible for keeping records of waste deposited and removed from site as when and required.


  1. Supervise and assist with the recycling projects ensuring that materials are correctly sorted.


  1. Assist in depositing waste oil in the collection facility provided.


  1. Ensure that all waste deposited into the skips is levelled evenly and skips filled in rotation.


  1. Responsible for keeping all buildings on the site in a clean and tidy condition.


  1. Carry out minor maintenance including tidying of any flower or shrub areas within the complex.”


In addition the claimant, under his said job description, had toilet attendance duties and/or market duties; but he also had various miscellaneous duties which included:-


“(1) Driving/messenger duties


...


  1. Perform such other duties as may be required including the interchange of duties to cover for leave, sickness and vacancies.”


The claimant reported to the Waste Manager of the respondent.


    1. The claimant’s statement of main terms and conditions of employment provided:-


“The claimant’s wage rate is as recommended by the Northern Ireland Joint Council for Local Government Services (the Northern Ireland Council). This rate may be varied from time to time in accordance with their recommendations.”


    1. It was therefore necessary for the tribunal to determine what was the relevant wage rate, as recommended by the Northern Ireland Council. This involved consideration, in particular, of the grading structure as set out in the National Joint Council for Local Authorities Services (Manual Workers) – Revised 1988 – Handbook – which, it was agreed by the representatives, was followed and applied by the Northern Ireland Council.


    1. Under the said Handbook, a grading structure was set out. Insofar as relevant and material it stated:-


“Section 2 – Grading Structure


This Section should be read in conjunction with the National Council’s joint document ‘Review of Grading Structure : Assimilation and Assessment’, dated August 1987 ... .”


(A) GRADING STRUCTURE


  1. The national grading structure and the job evaluation scheme used to establish it would take full account of the Equal Pay Act 1970 and Equal Pay (Amendment) Regulations 1983.


  1. GRADING OF JOBS


  1. The National Council has agreed a revised grading structure to which are attached job outlines for the jobs included. The national jobs have been allocated grades as follows:-


...


GRADE 3


Assistant School Caretaker


Driver 1


Gardener 3


Gravedigger


Housing Caretaker


Leisure Attendant 2


Road Worker 1


School Cleaner in Charge


Security Attendant/Porter


Sewer Operative


GRADE 4


Care Assistant


Driver 2


Road Worker 2


Waste Disposal Operative


Waste Disposal Operative [tribunal’s emphasis]


  1. GENERAL CONDITIONS


There are some general conditions applying to all jobs. These are:-


...


(b) all duties will be carried out in the working conditions normally inherent in a particular job;


...


(d) duties will be carried out for jobs up to and including those in the same grade, provided such duties are within the competence of the employee.


  1. NATIONAL JOB OUTLINES


...


(4) The job outlines for the national jobs are as follows:-


Waste Disposal Operative


“Responsible, individually, or as a member of the team, for the operation of a waste disposal location, landfill site, transfer site or construction site.


Duties will include – the driving of associated vehicles and the operation of plant and equipment at the site including the required servicing, routine maintenance (for example oil and water checks); traffic control of all site users; general site tidiness and cleanliness including site offices and facilities, and completion of associated paperwork.


There was no definition provided in the Handbook in relation to any of the specific matters set out above in relation to the job outline for Waste Disposal Operative.


    1. There was no dispute between the parties that, at all material times, the claimant was paid as a Grade 3. The main focus of his claim was that, in essence, he should have been paid, as an Amenity Attendant, as a Grade 4; in the same way as a Waste Disposal Operative is paid as a Grade 4.


The claimant’s position of a Civic Amenity Attendant was not a national job, which was allocated a grade in the Handbook. It was therefore necessary to refer to the procedures, as set out in the said Handbook, for bringing jobs, not referred to as national jobs, onto the structure in order to ascertain the relevant grade for any such jobs.


    1. The said procedures for bringing jobs onto the structure were stated in the Handbook to be as follows:-


“(E) PROCEDURES FOR BRINGING JOBS UNDER THE STRUCTURE


(5) Introduction


The system for grading jobs is explained in greater detail in National Council’s joint document ‘Review of Grading Structure : Assimilation and Assessment’, dated August 1987. What follows therefore is a brief summary of these procedures.


[It is to be noted that neither representative provided, in evidence to the tribunal, a copy of the said 1987 document.]


(6) NATIONALLY GRADED JOBS


For jobs which correspond to national jobs the process to bring them onto the structure is a broad comparison between the duties, responsibilities and other conditions in which the job is carried out with the relevant national job outline. Where the two accord, ie where there are no clear or major differences which would affect the overall grading, the job should be assimilated to the structure at the appropriate grade.


(7) LOCALLY GRADED JOBS


Local jobs are all those which have not been examined in the National Job Evaluation exercise or those where broad comparison with the relevant national job shows there are clear and major differences. The National Joint Council has agreed that these jobs shall be assessed and brought under the structure using factor comparison as outlined in (8) below.


  1. FACTOR COMPARISON


Factor comparison entails looking at a local job and comparing it on factor-by-factor basis with a number of jobs chosen from the national structure as comparators. The process is therefore:-


(i) to identify comparator jobs from the national structure. These should be chosen on the basis that they have duties or responsibilities common with local jobs or other features which are relevant to the local job;


(ii) by reference to:-


(a) the job outlines of the comparator national jobs and the commentary on them;


(b) the individual factor scores for these jobs (Appendix ‘A’); and


(c) where necessary, the job evaluation scheme and notes for guidance (Appendix ‘B’);


assess the local jobs with the comparators on a factor-by-factor basis and so decide on a level for each factor for the local job;


  1. obtain the total score for the local jobs by reference to the points for each factor level in Appendix ‘C’ of this section;


  1. translate the total point score into the appropriate national grade (Appendix ‘C’).”


    1. The claimant did not provide sufficient relevant evidence which would have enabled the tribunal to properly assess the claimant’s job, as an Amenity Attendant, as a local based job; and to enable the tribunal, in particular, to carry out the necessary comparison, on a factor by factor basis, to obtain a total points score which would allow the local based job to be translated into the appropriate national grade.


To enable the tribunal to have done so and to be satisfied, under the procedures, the claimant was entitled, as a local based job, to be paid at Grade 4 would have required detailed and/or expert evidence. Such evidence was not given to the tribunal. Mere reference to various of the factors referred to in Paragraph 8, and the appendices thereto, of the said procedures appropriate to Level 3 and/or Level 4 was not sufficient to enable the tribunal to carry out the said comparative exercise required to show the claimant should be paid as a Grade 4, as an Amenity Attendant.


The main focus of the claimant’s claim was that his job, as an Amenity Attendant, required a relevant comparison, as set out above in Paragraph 6 of the said procedures in the Handbook, to be made with the nationally graded job of Waste Disposal Operative; and, if appropriate, to allow him, as an Amenity Attendant to be assimilated into the structure and to be paid, like the Waste Disposal Operative, at Grade 4.


    1. Although this Handbook was revised in 1988, there was no evidence that there had been any relevant and material changes to same following that date. It therefore remained necessary for the tribunal to determine this claim, in the context of the terms of the Handbook, as set out above.


    1. A major part of the claimant’s duties as an Amenity Attendant at the Civic amenity site in Portadown, required him to operate a compactor. There are three types of compactor, namely a ‘static’ compactor, a ‘skip’ compactor and a compactor which is, in essence, an excavator/bulldozer/dump truck type vehicle. There was no dispute that the static compactor is a permanent fixed structure, to which skips are brought to enable waste to be compacted. Such a compactor was not relevant to the determination of this claim. Further, at the Civic amenity site in Portadown, there were no bulldozer type vehicles – which would normally be found at a landfill site. It was not disputed the Civic amenity site in Portadown was not a landfill site.


However, at the Civic amenity site in Portadown, there was a ‘skip’ compactor which the claimant, in the course of his normal duties, was required to operate. The ‘skip’ compactor is a relatively large type of machine which runs on wheels along a ‘rail track’. It has a compactor arm which compacts the waste, which is contained in a series of skips. These skips are arranged, in a line, alongside the said rail track. The operator sits in a cabin and operates the various controls to move the compactor along the ‘rail track’, but also to enable the compactor arm to compact the said waste in the said skips. He has a key, similar to an ignition key in a car, to start/switch off the engine and there is a choke. In addition, there are various controls, including a control called ‘drive’ to allow the compactor to travel along the said rail track. The claimant, as operator of the said compactor, is required by the respondent to fill out a ‘driver’s daily report’, which includes a checklist to fill in, as appropriate, in relation to the said compactor, relating to the maintenance carried out on a daily/weekly basis. This daily report is a standard type document and used by all drivers, in the employment of the respondent, and is not solely for the use of the person operating the said compactor. A licence is not required to operate the ‘skip’ compactor; and the claimant received a short period of training, of some three hours duration, on how to operate it before he commenced his duties. On an average day, the claimant would operate the compactor some 10 times a day, in addition to his other duties, as referred to previously.


    1. As part of his duties as an Amenity Attendant, the claimant, on a few limited occasions, was required to drive one of the respondent’s vans for the purposes of attending a training course with fellow employees away from the said Civic amenity site in Portadown. In addition, some years ago, the claimant was required by a supervisor, on approximately three or four occasions, to drive one of the respondent’s tractors, as part of his duties, to enable some fridges and other similar items to be moved. The claimant accepted that, in essence, these were ‘one-off’ occasions and not part of his normal duties and also he would not now be allowed to drive a tractor in similar circumstances, even if asked, for health & safety reasons.


The claimant also drives his own car from the Civic amenity site to the council offices and/or depot, for meetings/delivery of mail/timesheets, etc and the obtaining of stores. The use of his own car for these purposes, would appear to have been a matter of mutual convenience for both the claimant and the respondent. Although driving/messenger duties are, as set out previously, included in the miscellaneous duties under the claimant’s job description; I was satisfied, on the evidence, such duties, in contrast to his duties with the ‘skip’ compactor, were not a major part of his normal duties and were a minor duty incidental to his said major duty.


    1. The respondent began to operate Civic amenity sites in or about 1991. Mr Topley, the claimant’s Waste Manager, for the previous 12 years, suggested that it was his belief that, whenever the respondent began to operate such sites, in 1991, that an evaluation of the post of Amenity Attendant took place at that time; and, as a result of that evaluation, the respondent paid and continued to pay from that time an Amenity Attendant at the level of Grade 3. However, he was unable to produce any relevant evidence, documentary or oral or otherwise, to support his belief that such an evaluation took place then or at any time and/or, if such an evaluation took place, how it was carried out and on what basis it was decided that Amenity Attendants should be paid at Grade 3. Mr Topley was unable to produce any evidence to show at what grade Amenity Attendants were paid in any other local council in Northern Ireland, other than in relation to Lisburn. He suggested Amenity Attendants were paid by Lisburn City Council at Grade 3, together with some form of a bonus. However, he was unable to produce any evidence in relation to how such a pay arrangement/agreement had been arrived at by Lisburn City Council and/or the precise duties carried out by such an Amenity Attendant for Lisburn City Council.


    1. The Civic amenity site in Portadown was not, it was agreed by the representatives, a landfill site, transfer site or a destruction site, as referred to in the national job outline for Waste Disposal Operative. Up until in or about 2006, the respondent had operated a landfill site. The Waste Disposal Operatives, at that site, were required to excavate, load and transport materials within the site as required, using bulldozers/excavator/dump truck type vehicles. They required to have a licence to drive such vehicles. I have no doubt that operating such vehicles required a higher degree of skill and technical ability and competence than would have been required by the claimant to operate the ‘skip’ compactor, as an Amenity Attendant, at the Civic amenity site. However, those employed as a Waste Disposal Operative by the respondent at a landfill site, were employed in a specific job for which a national job outline was set out in the Handbook – and which was paid at Grade 4.


I was satisfied, on the evidence, the major duty of a Waste Disposal Operative, involved the ‘driving of associated vehicles’; and, in particular, vehicles of whatever type, which were primarily required to deal with the waste at the waste disposal location/landfill site/transfer site/destruction site, as referred to in the national job outlines.


2.14 Unfortunately, there was no definition given in the Handbook of what was meant, in the said national job outline for a Waste Disposal Operative, by the term ‘operation of a waste disposal location’.


Waste disposal location was not further sub-divided to exclude a site such as the Civic amenity site in Portadown. In my judgment, it must therefore include the Civic amenity site in Portadown – where members of the public/householders in the respondent’s local authority area are required and/or encouraged to bring household waste/bulky items which are then placed in skips by them and compacted by the ‘skip’ compactor, before removal by the respondent for further appropriate disposal. The Civic amenity site in Portadown disposes of waste, albeit mainly household waste.


If it had been intended to exclude from the term ‘waste disposal location’, such as the respondent’s Civic amenity site, then the job outline in the Handbook for a Waste Disposal Operative could have done so; or, if it was not a description in use at the time when the Handbook, was revised in 1988, it could have been subsequently amended/revised to do so at a later stage. This has not been done.


‘Disposal’ in the Concise Oxford English Dictionary is defined to include ‘the action or process of disposing’. Members of the public/householders in the respondent’s local authority area are asked/required to dispose of their household waste in skips made available for their use by the respondent at the said site. It is then compacted, by the ‘skip’ compactor operated by the claimant, as part of the process of disposal; and subsequently removed; as appropriate, for example, to a landfill site or destruction site, by the respondent, as the final part of that process of disposal.


2.15 The claimant raised a grievance on 3 February 2006 through his trade union representative, Mr Conn, a senior shop steward, who is also employed by the respondent as a Mechanic seeking to be paid as a Grade 4 rather than Grade 3. In a response to the said grievance, dated 9 February 2006, Mr Topley, the Waste Manager, stated, inter alia:-


“Grade 3 has been the established grade for the post of Civic Amenity Attendant for a number of years.”


In a further response, dated 2 March 2006, he stated as follows, when rejecting the claimant Stage 1 Grievance:-


“During the grievance meeting, Mr Conn suggested the appropriate grading for a Civil Amenity Attendance should be Grade 4 as the NJC Green Book suggests Grade 4 for a Waste Disposal Operative. However the grade suggested in the Green Book are only examples. It is my understanding that grading of ‘former manual posts, was carried out locally in 1987, when the Civic Amenity Attendant was evaluated at Grade 3.”


Mr Trevor Graham, Head of Technical Services, further rejected the claimant’s grievance when he stated in his memo, dated 8 May 2006:-


“ ... the green/white NIJC Handbook was referred to as categorising ‘Waste Disposal Operatives’ as Grade 4, while at present the Amenity Attendant post is a lower Grade 3. While this guideline mentions specific operational duties the implication is that the Waste Disposal Operative must be carrying out all of the duties listed. However, my reading of this clause is that while it refers to a waste disposal location the duties involve specific driving of typical vehicles on such a site as excavators, bulldozers, tractors, lorries, etc which at present is not carried out at this site ... .”


At the Stage 3 Grievance Hearing, Mrs Lorraine Crawford, Inspector of Environmental Services of the respondent rejected the claimant’s grievance stating, in a memorandum, dated 31 July 2006, when she stated, inter alia:-


“Having considered this matter it is my view that operating a compactor is not driving a vehicle and I do not agree that the NJC National Job Outline for a Waste Disposal Operative is the same job outline as your current Amenity Attendant post.”


Following a Stage 4 Grievance Hearing, on 28 November 2006, as set out in a memorandum dated 19 February 2007, Mr Colvin, Director of Building Control Services of the respondent, rejected the claimant’s grievance when he stated, inter alia:-


“I agree with the responses which management side gave you at earlier stages of your grievance. It is my view that the post of Amenity Attendant was originally evaluated correctly at Grade 3.”


As set out previously, there was no evidence brought before the tribunal of such an original evaluation, other than Mr Topley’s belief that there must have been such an evaluation at that time. I did not find this belief, in the absence of any other evidence, of any assistance in my determination of this matter. Indeed, it seems strange, that if such an evaluation had taken place, as believed by Mr Topley, there was no record kept of such an evaluation and no member of the staff of the respondent, or former member of the respondent, was in a position to recall such an evaluation taking place, even if he/she could no longer recall the detail of the said evaluation.


2.16 The claimant brought a further grievance on 24 April 2008 to Mr Topley, which grievance, was similarly ultimately rejected, at a Stage 4 hearing, by Mr Colvin. In the course of these further said grievance hearings, the respondent again relied, in essence, on the said evaluation, to which reference has been made above; but it also relied, in particular, on the fact that the compactor was a machine and not a vehicle. In such circumstances the respondent did not consider the claimant’s post fell within the national job outline for a Waste Disposal Operative, which required him to drive an associated vehicle.


    1. I have no doubt that the compactor, if it was a vehicle (see later) must also be considered as an associated vehicle, as it was used in connection with the work carried out at the Civic amenity site.


Unfortunately, there is no definition of vehicle in the Handbook. Further, it is not circumscribed in any way.


In the Concise English Dictionary, a vehicle is defined as ‘a thing used for transporting people or goods on land, eg a car, a truck, or a cart’.


In the Refuse Disposal (Amenity) Act 1978, Section 11(1), a motor vehicle is defined as ‘a mechanically propelled vehicle intended or adapted for use on roads, whether or not it is in a fit for such use, and includes any trailer intended or adapted for use as an attachment to such a vehicle, any chassis or body, with or without wheels, appearing to form part of such vehicle or trailer and anything attached to such a vehicle or trailer’. This definition was relied upon by the respondent, in the course of its rejection of the claimant’s grievance. Firstly, the said Act does not apply in Northern Ireland and secondly, it is a specific definition set down in a specific piece of legislation and refers to motor vehicle not vehicle. The Handbook, as indicated above, does not have any such definition. Therefore, I do not accept that, to satisfy the definition of ‘vehicle’, the ‘skip’ compactor is required to be a vehicle intended or adapted for use on roads. Further, in my judgment, the ‘skip’ compactor did not transport goods or people on land, as required under the above definition, found in the Concise English Dictionary. Certainly, the compactor moves along the rail track on wheels, compacting the waste, which has already been placed in the skips. However, it does not transport the waste or indeed the skip.


I recognise that, in a health & safety survey, carried out by the respondent, following an unrelated accident, a ‘skip’ compactor was included by the respondent in the category of vehicle, for the purposes of completion of the survey document. However, I do not consider that this can be determinative of the issue before me, where the purpose of the classification, as set out in a proforma document, was in relation to health & safety considerations and obtaining relevant details from the operators of all such vehicles referred to in the said document. It was not included for the purpose of analysing job outlines for the purposes of arriving at appropriate pay grades, under the relevant procedures set out in the Handbook.


3.2 I therefore concluded the ‘skip’ compactor, in the above circumstances was very different to a car, truck or a cart, as set out in the above dictionary definition; and that therefore the said compactor was not a vehicle.


However, I did accept that the claimant did ‘drive’ the said ‘skip’ compactor, when he operated it. To drive a vehicle does not require it to be driven on a road, nor does it require a person to have a licence.


As the Concise Oxford English Dictionary definition of ‘drive’ makes clear it includes:- ‘provide the power to operate (a machine)/urge a force to move in a specified direction/transmission of power, machinery onto the wheels of a vehicle’. When the claimant has switched on the ‘skip’ compactor and operated the relevant controls to move the said compactor’s wheels along the rail track, I was satisfied it was driven.


    1. In the absence of any finding by me, as set out above, that there was a previous evaluation by the respondent, it was necessary therefore to consider the procedures in the Handbook for bringing jobs onto the structure.


It was necessary to firstly consider whether the claimant could bring himself within Paragraph 6 of the procedures relating to nationally graded jobs; and, in particular, to show, in the relevant broad comparison, that there were no clear or major differences between the claimant’s job as an Amenity Attendant and the job outline of Waste Disposal Operative, as set out in the Handbook.


Whilst I accept that the claimant was responsible, either individually or as a member of a team, for the operation of a waste disposal location, I found, for the reasons set out above, in carrying out the broad comparison required between the job duties, responsibilities and other conditions, in which the job of Civic Amenity Attendant was carried out, and the job outline, as set out in the Handbook, for a Waste Disposal Operative, there was a clear and major difference – namely the claimant, whilst he drove a ‘skip’ compactor, was not driving an associated vehicle. Driving the said compactor was a major part of his duties as an Amenity Attendant. Under the job outline, as set out in the Handbook for a Waste Disposal Operative, as referred to previously, ‘Duties will include : the driving of associated vehicles and [tribunal’s emphasis] the operation of plant and equipment at the site including the required servicing, routine maintenance (for example oil and water checks); traffic control of all site users; general site tidiness and cleanliness including site offices and facilities, and completion of associated paperwork’.


The difficulty for the claimant, in my judgment, was the fact that the said ‘skip’ compactor, which the claimant drove as an Amenity Attendant, was not a vehicle for the purposes of the said broad comparison. I was satisfied, having regard to the other duties of a Waste Disposal Operative, as set out in the job outline, the claimant’s duties as an Amenity Attendant would have satisfied, if necessary and relevant; the said broad comparison test; but, since the said compactor was not a vehicle, it meant that the said broad comparison could not be made by the claimant, in order to establish that he, as an Amenity Attendant, should be paid as a Grade 4.


    1. I did not consider that the driving of vans/tractors, which clearly would be vehicles, which may have been carried out by the claimant in the course of his duties as a Civic Amenity Attendant, was relevant to the determination of the matter. His use of the van and the tractor were, in essence ‘one-off occasions’ and not part of his normal duties and, in those circumstances, did not satisfy the broad comparison which was required to take place under Paragraph 6 of the procedures, as set out above.


Again, as part of his miscellaneous duties, the claimant was required to do driving/messenger duties. Again, I found that this was, in the circumstances, not a major part of his normal job duties and therefore did not satisfy the necessary broad comparison test. Indeed the use of his own car to carry out those driving duties was apparently a matter for convenience; but, as the arrangement appeared to suit both the claimant and the respondent, I think it has to be accepted his own car was an associated vehicle for these purposes.


    1. Therefore, since there was the said clear and/or major difference, in relation to the claimant’s operation of the ‘skip’ compactor, which was not a vehicle, when carrying out the said broad comparison, it was not possible for the claimant to show that the job of Amenity Attendant could be assimilated to the structure at Grade 4 by comparison with the job outline of the said Waste Disposal Operative set out in the Handbook.


    1. I was further satisfied that, when considering the said procedures, it was firstly necessary to do the comparison set out at Paragraph 6 relating to the nationally graded jobs rather than any consideration of the procedures relating to locally graded jobs, as set out in Paragraphs 7 and 8. I so concluded because, in Paragraph 7, it was stated that “local jobs are all those which have not been examined in the national job evaluation exercise or those where broad comparison with the relevant national job shows there are clear and major differences”. This, in my judgment, confirmed that it was necessary to ascertain, firstly, whether there were the clear and major differences after carrying out the broad comparison with the relevant national job, before carrying out any of the procedures under Paragraphs 7 or 8.


As stated previously, in the absence of any relevant evidence, relating to the factor comparison as required in Paragraph 8 of the procedures, I was not in the position to make any relevant findings in relation to the post of Amenity Attendant; and whether, on foot of such a factor comparison, the total scores for the said post would have translated into a Grade 4 post.


Indeed, having regard to the various factors set out in the appendices relating to the factor comparison as required under Paragraph 8, and subject to any detailed evidence which might have been given, I would have had serious concerns whether it could have been shown that a person doing the job of Amenity Attendant, on foot of such a factor comparison, could have obtained a total score to enable him to be paid at Grade 4. However, in the absence of any such detailed evidence, I was not in a position to come to any conclusion in relation to that issue.


5. I therefore concluded that the claimant has been properly paid, at all material times, as an Amenity Attendant at Grade 3. I therefore concluded the claimant’s claim that the respondent had made an unauthorised deduction from his wages, pursuant to Article 45(1) of the 1996 Order, was not well-founded. The claimant’s claim must therefore be dismissed.








Chairman:



Date and place of hearing: 23 – 24 April 2009, Belfast



Date decision recorded in register and issued to parties:

15.

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