SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY FORSA)
Chairman: Mr Foley
Employer Member: Ms Connolly
Worker Member: Mr Hall
1. An appeal of an Adjudication Officer's Recommendation No(s)ADJ-00020161 CA-00026660
2. The Union on behalf of the Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 13 September 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 26 November 2019.
This matter comes before the Court as an appeal by the worker of a decision of an Adjudication Officer.
The worker concerned commenced employment with the employer in 2011 as a Multi-task Attendant. She was appointed to a temporary position as an Art Therapist in October 2014. There is no grade of Art Therapist in the employer organisation and she was placed on the pay scale of Workshop Supervisor.
A manager of the employer proposed to the worker’s Trade Union by e-mail in 2015 that the worker would be permanently re-graded to the position of Workshop Supervisor after four years in her temporary position.
The worker was advised in late 2018 that her appointment as a temporary Workshop Supervisor would come to an end in December 2018. Following representation from her Trade Union that termination of appointment was withheld until August 2019 in order to allow the matter to be considered by an Adjudication Officer. The worker reverted to her substantive grade of Multi Task Attendant in August 2019.
The worker submits that she was led to believe at various times that she would be permanently appointed to the grade of Workshop Supervisor. She claims that she should now be so appointed.
The employer submits that the manager who proposed that the worker would be appointed permanently to the grade after four years of occupying a temporary position had no authority to do so. The employer submits that is has no vacancy for either an Art Therapist or a Workshop Supervisor.
The history of the within matter is extraordinary. The manager who first appointed the worker to the position of temporary Art Therapist at the grade of Workshop Supervisor is contended by the employer to not have had the authority to do so. In fact, the employer submitted that the temporary appointment was via a completely flawed process. When that manager retired it appears that he proceeded to make representations on the worker’s behalf to another senior manager who then proceeded to make representations himself to other managers with whom the matter rested. Ultimately, the retired manager attended the hearing of the Court purporting to be a part of the representation or support for the worker. The Court did not permit his attendance at what was a private hearing.
Apart from a lack of unity and cohesion on the part of management in representing the employer view of the matter to the worker, the hearing of the Court included contention as to whether a document purporting to be a letter written by a manager on behalf of the employer actually existed at all.
The Trade Union has drawn a comparison between this matter and a matter earlier dealt with by the Court. In that matter the Court addressed the situation of four workers who had occupied approved and fillable vacancies for a considerable period of time and where the employer intended to fill those vacancies permanently. In the within matter the employer asserts that no permanent vacancy exists and no approval to appoint a person to either the position of Art Therapist or Workshop Supervisor exists. The employer asserts that no workshop exists and no staff are in place to supervise. In essence the employer submits that the worker seeks to be permanently appointed to a ‘non-post’. This framework places the within dispute in a different context entirely to that which applied in the earlier dispute considered by the Court.
In all of the circumstances the Court cannot recommend the appointment of the worker to a post which does not exist. It is for the employer and not the Court to determine the clinical staffing needs of the service for which it is responsible and the employer has clearly submitted that it has no vacancy for an Art Therapist or a Workshop Supervisor.
The Court does however understand that the worker has, on foot of the practically inexplicable lack of alignment of management locally with the position of the employer in respect of this matter, been left with unfulfilled expectations and a lack of clarity as to the actual position of her employer as regards the prospects for permanent appointment to the post of Art Therapist or Workshop Supervisor.
In all of the circumstances, the Court recommends that the employer should compensate the worker for the loss of earnings she will suffer as a result of the loss of her temporary appointment which she had been led to believe by a now retired manager would result in her permanent appointment. That compensation should be calculated in accordance with the normal arrangements for compensation for loss in the employment which is payment of a sum equivalent to 1.5 times the annual financial loss involved.
The Court further recommends that, having regard to the lack of alignment of the employer side which extended as far as a retired manager making representations on the worker’s behalf and a senior manager taking that matter onwards, the employer should recognise the confusion created for the worker and should make an additional compensation payment of €5,000 in that respect.
The decision of the Adjudication is varied.
The Court so recommends.
Signed on behalf of the Labour Court
19 December 2019Chairman
Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary.