ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017941
Dispute Reference No.
Date of Receipt
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 21/01/2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker commenced employment with the Employer in 1990 as a Painter. In 2006 he was appointed to the role of Assistant Foreman of Works to the Graffiti Initiative in an acting capacity.
In 2013, the Graffiti Initiative was stood down and the work transferred to the newly established Public Realm Section. The Worker was appointed to the same role in the Public Realm Section.
The Worker was unsuccessful at interview to be made substantive in the grade. He is aggrieved that he has been directed to return to his original role as a Painter as he stands to lose a substantial proportion of his income as a result.
Summary of Worker’s Case:
The Worker submits:
The Worker has lodged a grievance that a position he held from 20th of April 2006 until late 2018, as Acting Assistant Foreman of Works (AFOW), has been taken from him and he has been reassigned to his original position of Painter. The Worker will face a loss of remuneration which equates to approximately €21 ,OOO per annum.
The Worker started with the Employer in June 1990. In 2006 he was appointed as Acting Assistant Foreman of Works, (AFOW). The Worker was assigned to the Graffiti Initiative and held the position until his Employer introduced the Public Realm Division (PRD).
The Worker was appointed to the PRD, in an acting capacity, by way of letter dated 20th May 2013.
In September 2016, the Worker applied for promotion to Assistant Foreman of Works. The Worker entered the competition for the position believing it was his given that he had held this position for over 12 years without complaint. He was unsuccessful at interview stage.
In 2018, the Worker applied for promotion to Foreman of Works. He was unsuccessful at interview stage.
In 2018 he was informed that he would have to return his original post of Painter. The Worker is very aggrieved by this move considering he held the post of Assistant Foreman of Works from 2006 to 2018. The Worker stands to lose a lot of money as a result of his demotion.
The Worker is aggrieved that the PRD agreement did not deliver on his AFOW role. When the Worker was appointed to the PRD he believed his position was secure as he had been doing the job for over 12 years and was in receipt of the acting allowance at the time of the establishment of the PRD agreement.
The Worker and his Union are relying on a Recommendation issued by the Rights Commissioner Service of the LRC in 2014. In that case, the Rights Commissioner recommended that the Worker be regularised in the position he held for 8 years.
Summary of Employer’s Case:
The Employer submits:
The Worker was appointed Acting Assistant Foreman of Works to supervise a Labour Activation Crew (Graffiti Initiative) in 2006 by way of recommendation to the County Manager “pending the making of alternative arrangements”. The Worker was aware from the outset that the Acting Assistant Foreman of Works post assigned to the Graffiti Initiative was not a permanent post and could not be “made up”.
The Worker was to continue in the post by way of regular managers order all of which state “or until alternative arrangements are made”.
In 2013, the Graffiti Initiative was stood down and the work transferred to the newly established Public Realm Section. It was agreed at the time that staff who were in acting posts would continue to hold those acting posts until a final structure was agreed.
In 2012, the Employer ran a Temporary Foreman of Works Competition. This is a higher grade than the Assistant Foreman of Works which the Worker was acting into. The Worker applied for this post but was unsuccessful.
In 2015, the Employer agreed a Work Force Plan with the Union for outdoor staff grades.
Under the Work Force Plan, the first filling of vacancies was by way of competitions confined to the Employer’s staff, with subsequent posts filled by way of open competition. Interviews were held for the posts of Acting Foreman (May) of Works and Permanent and Acting Foreman of Works (August). The Worker did not apply for either competition.
The Worker did apply for the Assistant Foreman of Works Competition run in September 2016. He was unsuccessful on this occasion.
In 2018, the Employer ran a Foreman of Works Competition. The Worker applied but was again unsuccessful.
It would appear to be the case that there is a view amongst certain outdoor staff grades that “lads can be made up” and that interviews are a mere formality. This is not the case.
There is a clear understanding that Acting Posts are temporary in nature and that at the end of the period of acting, the staff member concerned returns to their substantive grade or in the circumstances where interviews have taken place, they are appointed to the post on a permanent basis.
A review of records indicates that at least 12 staff (outdoor grades) who were in Acting Posts reverted to their substantive grade due to a permanent panel being put in place since 2015 (after the Work Force Plan for the Employer was agreed).
Following the creation of the Assistant Foreman of Works panel in 2016 (for which the Worker was unsuccessful) he was informed by local management that he would be reverting to his substantive grade of Painter. A new Assistant Foreman of Works was duly appointed, however this individual was also subsequently appointed to another post therefore leaving a further vacancy.
On 9th August 2018, the Worker was notified in writing to revert to his substantive grade of Painter effective from 13th August 2018. This was extended to 27th August 2018.
No loss of earnings arises as the Worker is returning to a pre-existing Painter role.
Comparator Submitted by the Union
The Employer contends that the Rights Commissioner Recommendation offered as precedent by the Union is not an appropriate comparator and does not establish in any way a precedent as the circumstances of both cases are entirely different and not comparable.
The Worker who was the subject of the Rights Commissioner Recommendation was employed on 6th June 2007 as a General Operative and on that date was immediately assigned to the duties of a driver and continued to perform only driver duties.
The Employer accepted the Rights Commissioner Recommendation in 2014 on a standalone basis and without precedent on the basis that the Worker in question had only performed driver duties. In contrast, the Worker in the herein case was employed with the Employer since 1985 and had, prior to being appointed Acting Assistant Foreman of Works in 2006, performed duties assigned to him initially as an apprentice painter and subsequently as a painter.
It must also be noted that the Rights Commissioner Recommendation predates the agreeing of a Work Force Plan between the Employer and the Union.
Findings and Conclusions:
It is undoubtedly very difficult for the Worker to have to revert to his substantive grade after acting-up for over 12 years given the resulting loss of income and of status.
I note that, on 19th May 2015, the Union wrote to the Employer confirming its agreement to the Work Force Plan as follows:
“In respect of the regularisation of long term acting posts identified during the process, we wish to confirm out agreement that they be filled by confined competition as outlined by Management”
In light of the agreement that is in place, It is not possible for the WRC to recommend any special treatment for the Worker in the herein case which would be contrary to the provisions of the agreement between the Employer and the Union.
It is regrettable that when the Management and Union sides were agreeing the Work Force Plan in 2015, no provision was made for workers who had been acting-up for significant periods of time but who were unsuccessful at interview for promotion.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
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 interviews.
Workplace Relations Commission Adjudication Officer: Marie Flynn