FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MEATH COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-131572-Ir-13/JT
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner Recommendation No: r-131572-Ir-13/JT. The issue concerns a worker who was successful at interview for the position of Senior Executive Engineer to cover an employee seconded to a different local authority. The worker was appointed to the acting position with effect from January 2005 and remained in the post until February 2013. The worker is seeking that he be regularised in the Senior position on the basis of the inordinate length of time spent acting up in the role. Management's position is that the worker was paid an acting up allowance while in the senior role but that management cannot regularise the worker in that post without holding a confined competition for the position.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 7th November 2013. On the 3rd December 2013 the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 5th March 2014.
WORKER'S ARGUMENTS
3 1 The worker should be regularised in the senior post on the basis that he has acted up in to that post for many years. When the worker sought to be regularised, management effectively demoted the worker by removing him from the post that he had held for almost eight years and then recalled the seconded employee to his original post.
2 There are several precedents throughout the public service where those acting up in senior posts have been regularised and have also received incremental credit for the periods spent acting up. Management's actions in the current situation are totally unacceptable.
MANAGEMENT'S ARGUMENTS:
4 1 The worker was successful at interview and acted up in the senior post for many years and was paid an acting up allowance throughout. Management is unable to regularise the worker in the senior post solely on the basis of his period of time spent acting.
2 The Haddington Road Agreement provides that the regularisation of staff acting up in senior roles should be the subject of confined competitions within each organisation.
DECISION:
Having carefully considered the submissions of both parties together with the supplementary submissions made in this case the Court finds that the Claimant was appointed to the acting position while the Senior Executive Engineer was on secondment to another local authority.
The Court notes that the seconded employee has not effectively returned to his substantive post to date.
Accordingly the Court finds that the Complainant at all times retained an entitlement to continue to fill the vacant post until the seconded employee returns to work, the vacancy is filled by open competition or the post is suppressed.
Signed on behalf of the Labour Court
Brendan Hayes
9th May 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.