LCR22321

1. An appeal of an Adjudication Officer's Decision No. ADJ-00021048.

BACKGROUND:

2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 28 January 2020 the Adjudication Officer issued the following Recommendation:-

• “In large organisations the process of restructuring can be time consuming particularly where the service being provided is to be delivered in a significantly different way. On occasions a temporary appointment may have to be made as an interim measure. It would not make sense if, on such occasions, the temporary appointee was required to be appointed on a permanent basis. Accordingly, I do not believe the claim can be upheld.”

It is not disputed between the parties that the Worker was initially appointed into the acting position in 2014 to cover for an incentivised career break. The Worker was in that position for three years and was not paid an acting allowance for that period. It was the Employers submission that the Worker was subsequently paid in respect of that period. However, the Worker’s Union informed the Court that in fact the Worker had not received payment either at the time or at a later stage. The Employer undertook to look into that and to make any payment that was due. That acting period ended when the person on the career break returned to work on the 1^st April 2017.

The post fell vacant again when the postholder retired and the Worker was offered a specific purpose contract which stated, “ for the purpose of covering position no 133 the expected end date is 15^th April 2019”. It is management submission that the contract was linked to the decongregation of Cregg services and the fact that once the decongregation had been completed there would be no need for post 133 which is a catering manager post. The process of decongregation has taken longer than originally envisaged but is now expected to be completed in quarter two, 2021. At that stage the post of catering manager will no longer be required, and the funding attached to that post has been earmarked for other use in the new setting. The worker will return to her substantive grade and be redeployed as appropriate.

The Worker in 2017 signed the specific purpose contract under protest, acknowledging that she was aware of the decongregation of Cregg services and advising that she intended to pursue the issue of regularisation/permanency of the acting position. The Worker did not dispute the fact that going forward the post would not be required in Cregg services’ but she felt she could be regularised into the post and then redeployed at a later stage at the higher grade.

The Worker lodged a grievance under the HSE Grievance procedure. The stage 1 hearing took place on the 27^th September 2018. On the 12^th October 2018 the Worker was notified of the outcome, that her grievance had not been upheld she appealed that decision. The stage 2 hearing took place on the 8^th January 2019 the report arising form that hearing noted that following the decongregation, the requirement for a catering manager in Cregg services would no longer exist and therefore her grievance was not upheld. This outcome was appealed, a stage 3 hearing took place on the 5^th March 2019. The report from the appeal dated 19^th March 2019 noted that there is no basis for regularising the post as going forward the post will not be required. On that basis the grievance was not upheld.

It is clear to the Court from the written submissions of the parties and the oral submissions on the day that the Worker knew when she signed the contract that intention was to abolish the post once decongregation had occurred and on that basis the Court cannot recommend her regularisation into the post. However, the Court does have concerns in respect of the manner in which the issue was handled by the Employer noting that when the end date of the specific purpose contract had passed the employer did not engage with the Worker in respect of a further extension of the contract or a timeline in respect of their plans for the post. They just let the situation drift. As the Worker had a substantive post no legal entitlement accrued to her from this, but it is not an appropriate method of managing a situation of this nature.

The Court taking all the above into consideration decides that the Employer should ensure that the Worker receives payment for the 2014 to 2017 period as committed to by the Employer in the course of the hearing. The Court also decides that the Employer should pay the Worker compensation in the amount of €3,500 for the failure of the Employer to engage with the Worker in a meaningful manner following the passing of the end date in the specific purpose contract .

The decision of the Adjudication Officer is overturned .

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CR	______________________
18 December, 2020	Deputy Chairman