SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTH DUBLIN COUNTY COUNCIL
- AND -
MR EUGENE MCDONAGH
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr Hall
1. An appeal of an Adjudication Officer's Recommendation No.ADJ-00017941
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 21st March 2019 the Adjudication Officer issued the following Recommendation:-
"Having taken into account the written and verbal submissions of both parties, I do not recommend in favour of the Worker’s claim. However, I recommend that both sides enter into discussions to explore the possibility of putting measures in place to address the expectations of those workers who have been acting-up for significant periods and are unsuccessful at promotional interview."
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 1st May 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 4th July 2019.
This matter came before the Court by way of an appeal brought by the Worker against a Recommendation of an Adjudication Officer (ADJ-00017941, dated 21 March 2019) under section 13 of the Industrial Relations Act 1969.
The Worker commenced employment as an apprentice painter with South Dublin County Council (‘SDCC’) in 1985. Following completion of his apprenticeship in 1990, he was appointed to the position of painter with SDCC. In 2006, the Worker was appointed Acting Assistant Foreman of Works (‘AAFW’) to supervise a Labour Activation Crew as part of the Graffiti Initiative. His appointment was initially for six months, however, as things transpired, he was continued in the position for over twelve years by way of successive Manager’s Orders each of which provided that the Worker’s renewed appointment would continue “until alternative arrangements are made”.
In 2012, SDCC ran a competition for the position of Temporary Foreman of Works. The Worker applied but was unsuccessful in his application. Two further competitions took place in 2015: Acting Foreman of Works and Permanent and Acting Foreman of Works. The Worker did not apply for either position. SDCC held a competition for Assistant Foreman of Works in September 2016 and a panel was formed thereafter. The Worker applied but was not placed on the panel. At that time, the Worker was informed that he would be required to revert to his substantive grade of painter once the successful candidate took up post as Assistant Foreman of Works.
The Worker was instructed by SDCC by letter dated 6 September 2018 to report for duty as a painter on 10 September 2018. He was advised in that letter that should he fail to comply with the instruction therein that he may be subject to disciplinary action. The Worker went out on long-term sick leave from 10 September 2018 until 17 May 2019. He resumed work in his substantive grade on 20 May 2019.
The Worker’s Submission
The Worker’s case is that his acting up position was protected by a collective agreement negotiated between SDCC and the Craft Group of Unions, under the auspices of the then Labour Relations Commission, in March 2013. The agreement in question provided for the establishment of the Public Realm Division to which the Worker was duly assigned as an AAFW. The agreement also expressly provided that some thirty-four staff who were within the scope of the agreement and who were at the time in receipt of an acting allowance would continue to do so following the establishment of the Public Realm Division. The Worker submits that he had an expectation - having regard to the duration of his successive acting up appointments and having regard to the wording of the Public Realm Division Agreement – that he would be red-circled and his position would be regularised. His representative told the Court that the Worker believed that the interview process he submitted to in 2016 was a mere formality and he assumed that his appointment on a permanent basis would have followed automatically. The Worker also submits that he faces a loss in remuneration and allowances of approximately €16,000.00 per annum following his compulsory reversion to his substantive grade.
It is accepted by the Council that it gave a commitment following the establishment of the Public Realm Division in 2013 that staff who had been in acting posts would continue to hold those acting posts until a final staffing structure had been agreed. A new Workforce Plan for outdoor staff was subsequently agreed between SDCC and SIPTU in 2015. It provided for the first filling of existing vacancies (including the regularisation of long-term acting arrangements) by way of confined competition and the filling of subsequent vacancies by way of open competition. SDCC submits that the Worker could not have been permanently appointed to the position he held on an acting basis unless he had been successful in a relevant competition. The Council also submits that the Worker’s claim for loss of earnings is not well-founded in circumstances where he is reverting to his substantive role and a pre-existing contractual arrangement.
The Court has given careful consideration to the Parties’ written and oral submissions. It understands the Worker’s disappointment in circumstances where he has been required to revert to his substantive post after a very lengthy period of acting up in a more senior position. However, the Court is unable to uphold the Worker’s claim for appointment on a personal-to-holder basis to the acting up position he held for some twelve years. The Workforce Plan agreed between the Union and SDCC clearly provides for regularisation of acting up arrangements by means of a competitive process only. This is consistent with established practice in the local government sector. The Worker’s claim for compensation is likewise not well-founded.
The Court so decides.
Signed on behalf of the Labour Court
30 August 2019Deputy Chairman
Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary.