Worker

Employer

Anonymised Parties

An Employee

A Health Provider

Representatives

Christine Rowland  Advocate

 Employee Relations Department

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00005023

26/08/2025

The dispute concerns the appointment of an interim Head of Service of a particular department within the Employer (hereinafter referred to as Head of Service). Due to the retirement of the then incumbent the interim vacancy arose with effect from 1/4/2025.

At the outset the Employer objected to this case proceeding on jurisdictional grounds – namely that Section 13 of the Industrial Relations Act 1969 (as amended) did not have broader application beyond any matters concerning an individual worker. In this regard the Employer cited case law, a national Circular dealing with recruitment and appointment procedures and the terms of a mediated agreement on the taking of legacy annual leave which it stated was reached pursuant to a long established dispute resolution process.

I advised that I would hear the issues and consider all matters prior to issuing my recommendation.

The Worker commenced employment with the Employer in 1987 and is in her current role since 1/11/2021. She continues to be employed by the Employer. The Worker stated that when the interim Head of Service vacancy arose on 31/3/2025, she was on annual leave due to an accumulation of legacy leave and was due to return to the workplace on 23/6/2025.  The Worker stated that the legacy leave had arisen over a fifteen year period as she had continuously worked her annual leave “with the agreement and consent of management thereby ensuring continuous level of service….”.  She stated that a written mediated agreement was reached between her and the Employer in relation to the taking of her accumulated/legacy annual leave.

The Worker stated that on hearing of the retirement of the Head of Service and the establishment of an interim position, she emailed and telephoned management seeking to return to work immediately. The Worker stated that she was the senior most suitable person eligible to be appointed to the interim position due to her length of service and experience. The Worker also stated that from 2024 she had been ranked No 2 on the Supplementary Head of Service panel but was now next in line on the panel. The Worker cited an email from the Employer of 1/4/2025 which on the one hand confirmed she was eligible for the interim position as she met the criteria of most senior suitable - but the email also advised this option was not available due to the legacy leave agreement.

The Worker stated that her offer of return was refused due to her being on legacy annual leave as per the mediated agreement. An alternative employee was appointed to the interim position. The Worker stated that she was also advised in June 2025 that the Head of Service panel had expired. The Worker attended a meeting with the Employer on 19/6/2025 accompanied by her advocate. She stated that she proposed a compromise resolution at this meeting – vis – that she would accept the appointment of the other employee to the interim Head of Service position on the basis that she not be financially disadvantaged as result. Accordingly the Worker sought to be paid the salary of the temporary higher appointment/THA from 1/4/2025 until the Head of Service position was finalised. The Employer did not accept the Worker’s proposal but in the alternative put forward a counter proposal that the Worker would receive the THA from her return date of 23/6/2025 until the first week of September 2025. This was not acceptable to the Worker.

The Worker initiated the internal Grievance Procedure on 25/6/2025 and attended a Stage 3 hearing on 28/7/2025. The Worker stated that the outcome of the Grievance Procedure accepted that her claim had merit and that it recommended she be paid the THA from 1/4/2025 to 30/9/2025. The Worker had also sought that the interviews for the interim Head of Service post be parked pending the finalisation/resolution of her grievances but this was not upheld and the Stage 3 grievance outcome determined there was a requirement for an interview process.

The Worker stated that she attended the interview for the interim Head of Service post on 21/8/2025 “under protest”. On 22/8/2025 the Worker was advised she had been unsuccessful at interview and had failed on two grounds namely – leadership and decision making. The successful candidate was the person who had already been appointed to the interim post. The Worker stated that notwithstanding the interviews the position continued on an interim basis until March 2026.

It is the position of the Worker that she has been significantly disadvantaged and incurred financial loss as a consequence of the Employer’s approach to the filling of the interim Head of Service post  including their insistence that she could not return from legacy annual leave, their refusal to allow her take up the interim position from 1/4/2025 and their failure to appoint her to the interim position when she did return on 23/6/2025. The Worker also objected to the “shut down” of the supplementary Head of Service panel in June 2025 and stated that as the senior most suitable candidate on the panel,  she should not have been required to go through an interview process for the interim post. The Worker stated that as a consequence of the Employer’s actions she has been denied a promotional opportunity. The Worker is seeking payment of the salary of Head of Service from 1/4/2025 until her retirement date and that the allowance be fully reckonable in her final salary for pension purposes.

The Employer stated that the issues raised by the Worker were comprehended by the provisions of its national recruitment and selection procedures and the operation and effect of the mediated agreement on legacy annual leave which was reached pursuant to a long established dispute resolution mechanism.

The Employer outlined the background to the mediated legacy leave agreement and stated that as per the terms of the agreement the Worker commenced a period of six months continuous leave from January 2025. The Employer stated that during this time the Head of Service position fell vacant following a retirement. In response to the Worker’s request to return early from legacy leave and take up the vacant/interim post, the Employer stated that it had decided the mediated agreement must run its course and the built up legacy leave taken as per the agreement.

From the 1st April 2025 the Head of Service position was filled on an interim basis by another senior manager in accordance with the principle “Most Senior Suitable” which the Employer stated applied to temporary vacancies of less than three months as per the national Circular. The Employer stated that the temporary position continued for an extended period “due to the unexpected delay” in relation to a service delivery model. However, a recruitment campaign was launched in or around August 2025, the Worker applied for the position but was unsuccessful.

It is the position of the Employer that the Worker is a long standing valued staff member, that she has been successful in other recruitment competitions throughout her career and that she was not disadvantaged by not having held the interim Head of Service post. The Employer stated that in August 2025, it was a matter for the interview panel to select the successful candidate, that the panel made a bona fide assessment based on the required criteria and that the Worker “was simply unable to demonstrate the competencies required for the role to the level expected by the interview board”. The Employer further stated that the Worker had not requested a review of the appointment or lodged a complaint about the interview process notwithstanding the existence of  specific provisions within its national procedures for this. Lastly, the Employer maintained the Worker was treated in the same manner as any other employee would have been in similar circumstances, that it consistently and fairly adhered to the terms of the mediated legacy leave agreement and that the Worker was not available at the material time when the interim Head of Service position arose.

In conducting my investigation, I have taken into account all relevant submissions, documents and correspondence presented to me by the parties. I am satisfied there is broad agreement between the Worker and the Employer on the facts of the case and on the sequence of developments. Having considered all matters carefully I have reached the following conclusions:

·        I consider the legacy leave agreement dated 30th July 2024 titled “Agreement Regarding Leave Following Facilitation Process” was in the nature of an industrial relations agreement and was outside the scope of the Organisation of Working Time Act [1997-2020]. This agreement was reached following a recommendation from a Grievance Procedure hearing initiated by the Worker in 2024 and is signed by the Worker and the Employer. The written Agreement clearly sets out how the legacy leave is to be taken and includes the block period between 6/1/2025 to 22/6/2025 which does not conceive of any circumstance where a return to work may be possible.  In all the circumstances, I am of the view that it was not unreasonable of the Employer to refuse the Worker’s request to return from the block legacy leave period in March or April 2025 when the interim vacancy for Head of Service arose;

·        In relation to the interview attended by the Worker on 21/8/2025 in respect of the continuation of the interim Head of Service position, I consider that the national guidance/procedures clearly provide for the establishment of a recruitment process where a temporary appointment exceeds three months. The Worker has stated she was at a disadvantage for this recruitment process/interview as a result of her not having held the interim Head of Service post prior to then. However, the Worker has not provided any information in relation to unfair treatment by the selection panel – such as potentially relating to the composition of the panel or any unfair marking or unfair questioning in the course of the interview. Further the Worker did not seek to review or complain about the interview/selection process as provided for in the national procedures. Whilst I acknowledge the Worker’s concerns about lack of experience in the interim Head of Service position, I am satisfied she has not provided me with any objective information that this acted to her disadvantage in the August 2025 interviews nor has she provided me with any information which would impugn the role of the selection panel or the manner in which they conducted the interviews;

·        The Worker returned from her legacy block leave period on 23/6/2025 whilst the interim Head of Service position was still in existence. The Employer advised the Worker per email of 1/4/2025 that had she been at work in March/April 2025 she would have been appointed to the post as she had “met the criteria for most senior suitable”.  In light of the Worker having met these criteria whilst she was on legacy leave, I consider it would have been fair and reasonable for the Employer to have appointed her to the interim Head of Service position on her return in June 2025. It seems to me that having required the Worker to comply with the terms of the legacy leave agreement – which I accept was not unreasonable on the Employer’s part – that usual practice - ie the application of the most senior suitable criteria – should have been applied on her return on 23/6/2025. Whilst this may have led to some disruption in terms of a change of personnel in the interim Head of Service position in June 2025 – this disruption was conceivable anyway as a result of the launch of the recruitment process. In all the circumstances I am of the view that the Worker should have been entitled to take up the interim Head of Service position from her return on 23/6/2025 until the outcome of the recruitment process. I note that my conclusion in this regard is not inconsistent with the outcome of the Stage 3 Grievance Meeting/per letter of 31/7/2025;

·        Lastly, I consider the above conclusions are within the scope of Section 13 of the Industrial Relations Acts, 1969 (as amended) as they centre on the application of national processes/procedures in the case of an individual worker and do not apply to a body of workers.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusions I make the following recommendations:

1.      That the Worker be paid the THA salary from her return date of 23/6/2025 until the outcome of the recruitment process for the interim Head of Service position. In this regard I recommend the THA payment up until 30/9/2026 – a date which was acceptable to the Employer in the course of the adjudication hearing;

2.      That in addition, the Worker be paid the amount of €2,500 as compensation for the failure to appoint her to the interim Head of Service post from her return to work on 23/6/2025 until the outcome of the recruitment process;

3.      That, if necessary, further negotiations take place between the Worker and the Employer to give practical effect to these recommendations; and

4.      That these recommendations are being made my me on a strictly “Red Circled” basis – solely specific and confined to the Worker in this dispute.

Appointment to an Interim Promoted Position; Compliance with existing procedures