Worker

Employer

Anonymised Parties

A Police Officer

A Police Force

Representatives

Association Representative

 Employee Relations Manager

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 - 00003138

17/09/2024

The Worker stated that he has been fulfilling the role of immigration officer on a fulltime basis since December 2023 and is entitled to the allowance attached to the role. The Employer stated that he is not entitled to the allowance because he was not appointed to the role following a competition.

Since December 2023, the Worker has been carrying out immigration officer duties on a full-time basis. Despite this, the Employer has refused to pay him the full-time immigration allowance attached to the role. It is undisputed that the Worker was issued with a seal of appointment and formally appointed as an Immigration Officer by the Minister for Justice in September 2020. This type of appointment does not require an open competition; rather, it is made following the Employer’s selection of the individual in order for them to receive the seal of appointment.

The Worker further stated that, on 3 June 2020, five other workers were assigned as Immigration Officers at an airport without any open competition. Although these temporary arrangements were initially prompted by the circumstances surrounding Covid-19—circumstances which have since abated—all five individuals continue to serve as Immigration Officers. While one of those members was already in receipt of the Detective Allowance, and therefore ineligible for the immigration allowance, the remaining four were granted the immigration allowance, backdated to the date of their assignment. This clearly demonstrates an established practice: when an employee is performing immigration duties on a full-time basis, the allowance is payable.

Crucially, these transfers and appointments occurred without any competition, thereby creating a clear precedent directly relevant to the Worker’s situation. The Employer’s refusal to pay the Worker the allowance—while awarding it to colleagues appointed under identical circumstances—reveals a significant inconsistency in treatment. The rationale now advanced by the Employer, namely the alleged requirement for a competition, is contradicted by its own prior actions. This inconsistency underscores the unfairness of the decision and the absence of any objective justification for withholding the allowance from the Worker.

On 29 June 2024, the Worker submitted a grievance in relation to his entitlement to the qualified immigration allowance. He stated that he was fulfilling the role of Immigration Officer on a fulltime basis since December 2023 and was entitled to the qualified immigration allowance in accordance with the precedent set by the Employer when the qualified immigration allowance was paid to other police officers who were appointed immigration officers without competition.

The Employer’s Dispute Resolution Procedure provides that the grievance decision-maker (DM) should consult with the Employer’s Employee Relations team in a case which had the potential to impact on collective agreements. DM did so consult and was advised by the Employee Relations team in this regard. DM issued his decision on 1 August 2024 upholding the grievance concerning non-payment of Immigration Allowance and provided for retrospective payment of Immigration Officer’s Allowance from December 2023.

However, following a query from the local finance officer, on 9 August 2024, the Employer was advised that: … in so far as appointing the member on a permanent basis we (HRM) do have a requirement that where a vacancy exists in a Unit/Section to which an allowance is payable that vacancy may only be filled by way of competition. The Worker’s application for payment was therefore rejected.

On 13 August 2024, the DM suggested that a caveat to the CPSA Code requirement for competition was applicable to the worker’s situation. However, this suggestion was not adopted because the five caveats in the CPSA Code referred to by the DM were specific in nature and none are applicable to the Worker’s situation.

While the Employer acknowledged that the history of this matter did not reflect particularly well on them and accepted that the Worker had genuine cause for grievance, it was submitted that the response of the HRM team to the query from the local finance officers was nonetheless correct. Specifically, this response stated that the permanent Immigration Officer’s Allowance should not have been paid to the Worker in the absence of a competitive process.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

While it is clear from the Employer’s own internal procedures that, where a vacancy exists in a Unit/Section to which an allowance is payable, that vacancy may only be filled by way of competition, the Worker pointed out that this procedure was breached at an airport during the COVID-19 pandemic. In that instance, several police officers were appointed to the roles of immigration officer and were paid the applicable allowance, despite not having been appointed through a competitive process, contrary to the established procedure.

Although the Employer did not dispute these facts, it was submitted that the appointments were made on the instruction of the Government during a period of national emergency. In those circumstances, the Employer argued that it would be inappropriate for the Worker to rely on these appointments as a precedent in the present dispute.

In examining the arguments, I accept that the appointment of the five police officers as immigration officers during the COVID-19 pandemic, while not made through the standard competitive process as required by internal procedures, occurred under exceptional circumstances. They were made at the direct instruction of the Government during an emergency, when rapid deployment of personnel was critical to public safety and operational continuity. These appointments were a reactive measure, designed to address an urgent need, and were not reflective of routine administrative decisions or policy.

Given these circumstances, I find that upholding the Employer’s argument preserves the integrity of established procedures while acknowledging that exceptional circumstances may require flexibility, without undermining the normal competitive process, and it would be inappropriate to treat these appointments as a precedent in the present dispute. Accordingly, I cannot therefore recommend that the Worker be paid the allowance applicable to the role of Immigration Officer without having succeeded in a competition.

Having said that, it is necessary to recognise the inherent unfairness in the Worker’s situation. The Worker is currently performing the duties of an immigration officer—duties that would normally attract the applicable allowance—yet is not receiving the appropriate payment. While the Employer’s procedural justification for not applying the allowance is understandable, as set out above, equity requires that the Worker’s contribution be acknowledged.

In light of this, I recommend that an award of compensation of EUR 5,000 be made to reflect the fact that the Worker has been fulfilling responsibilities that ordinarily carry an allowance.