ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00035827
Parties:
| Worker | Employer |
Anonymised Parties | A Worker | A Local Authority |
Representatives | Joanna Ozdarska SIPTU | Eamonn Hunt, LGMA |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00047008 | 05/11/2021 |
Workplace Relations Commission Adjudication Officer: Conor Stokes
Date of Hearing: 12/08/2022
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following 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 information relevant to the dispute.
Background:
The worker has been employed since 2006, initially as a Craft Gardener and from 2007 until 2021 as a Chargehand on an acting up basis. Both parties are in agreement as to the facts of this case. |
Summary of Workers Case:
The worker submitted that it was unfair of the employer to revert him to his previous position after almost fourteen years in an acting up position. The worker is seeking reinstatement as a Chargehand, including the additional annual payment and the other benefits of the position. The worker is also seeking compensation for his treatment by the employer. |
Summary of Employer’s Case:
The employer submitted that the worker applied for the position of permanent Chargehand on three occasions, in 2015, 2018 and 2021. The employer stated that the worker was successful in the initial competition, being placed on a panel of successful applicants. Unfortunately, his place on the panel was not reached before expiry of the panel. The worker was unsuccessful in the following two competitions. The position was filled substantively in 2021 and the worker reverted to his former role as Craft Gardener. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The worker suggested that it was unfair to him to demote him after he was acting up for almost fourteen years. I note that the employer indicated that it was precluded from filling permanent posts for a number of years. Precluding public bodies from filling vacancies is a common practice when straightened financial circumstances apply and, in such circumstances, it is also common practice to fill positions by way of acting up. This system of addressing vacancies is not unfair in and of itself. However, retaining a person who was unsuccessful in a number of substantive competitions in situ of a further six years comes across as unfair. This unfairness is further compounded when there was no disciplinary or competency-based issue with the person who was acting up during the following six years. I note that the worker was only provided with interview training prior to the 2021 recruitment competition and that the worker had provided a large degree of flexibility during his acting-up period service in a number of locations where there were staff shortages. Having regard to the oral and written submissions, I am satisfied that not ensuring that the person in an acting-up capacity was appropriately prepared to interview for his position when it finally opened up is unfair. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
Having regard to all the oral and written submissions in relation to this dispute, I recommend that the employer pay the worker the sum of €2000.
I also recommend that the employer ensure that interview training is automatically offered to staff members acting up who have been holding those positions for more than twelve months.
Dated: 29th September 2022
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
IR dispute – acting up – no adequate interview preparation – unfair |