FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN BORD PLEANALA - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation r-033967-ir-05/JC.
BACKGROUND:
2. The worker concerned is the second most senior Senior Executive Officer (SEO) in An Bord Pleanála. He has in the past been appointed to the post of Senior Administrative Officer(SAO) on a higher duties allowance basis. The last such appointment was from 23rd June 2004 to 20th January 2005.
In March 2005 the worker made an unsolicited application for an acting position as SAO. No notice had been issued by the Board seeking applications for such a post as no post existed. The Board Secretary recommended that the worker be appointed as an SAO on a temporary basis on a higher duties allowance. The recommendation was not accepted. The post being sought by the worker was one of a package of three posts (2 SAO and 1 SEO). This package had been rejected by the IMPACT union as a piecemeal approach to the implementation of IPC's recommendations for the proposed reorganization and restructuring of, inter alia, the Board's Information Communications Technology (ICT) section.
The issue was referred to a Rights Commissioner for investigation and recommendation. In her recommendation which issued on the 20th October, 2005 she stated"I find that pending a decision by the respondent to proceed with the establishment of one or both of the SAO positions there is no vacant position to which the claimant could be appointed on an acting basis and I recommend against the claim."
The worker appealed the recommendation to the Labour Court on the 7th November, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 2nd March, 2006.
WORKER'S ARGUMENTS:
3. 1.As the post in question has been removed from the Board's complement the claim to be appointed on an acting basis has now been rendered historical.
2. The claim is now for the difference in the salary he would have had on promotion for the period 21st January 2005 to end of November 2005.
COMPANY'S ARGUMENTS:
4. 1.The decision not to appoint the worker concerned or anyone else as an acting SAO was taken as no such post existed. The worker was informed of the decision.
2. All existing SAO posts in the Board, both permanent and temporary, are filled by way of internal competition.
DECISION:
The Court has carefully considered both the written and oral submissions of the parties at the hearing.
The Appellant principally argued that, against the backdrop of his employment history of acting-up as a Senior Administrative Officer ("SAO") on two previous occasions, there was a well-established custom and practice, endorsed by his trade union, IMPACT, in the Board that vacant SAO positions were promptly filled on an "acting-up" basis by the next most senior and suitable employee in the absence of a prompt competition, internal or external, to make up a panel out of which an appointment would be made or to make a permanent appointment after such a competition. He argued that the same custom and practice prevailed for acting-up SAO appointments in instances such as maternity leave relief, etc.
The Appellant further argued that in the particular circumstances of this case that the Board's parent Department of Environment, Heritage and Local Government having ultimately sanctioned, inter alia, a further SAO post in the Board responsible for Internal Audit/Quality Assurance/Customer Services, he was entitled to be appointed to that position on an acting-up basis in accordance with the custom and practice outlined.
He further argued in support of his appeal to the Court that his view that there was no evidence to support the Board's contention that the filling of that position was conditional upon the prior filling of two other SAO and Senior Executive Officer (SEO) positions in Information and Communications Technology (ICT), also sanctioned by the parent Department at the same time previously, strengthened his claim to be appointed to the position on the basis indicated.
The Board argued against the Appellant's appeal on the bases that the three positions sanctioned by the parent Department on the 3rd November, 2004, were conditional upon them being put in place together and the two ICT positions being filled by external competition prior to the holding of the competition for the further SAO position in Internal Audit/Quality Assurance/Customer Services. IMPACT subsequently rejected the filling of those three positions prior to completion of the outstanding negotiation and agreement to implement the Irish Productivity Centre (IPC) Report on the restructuring of the Board's operations. Therefore, notwithstanding the prior conditional sanction of the SAO post in dispute, the post did not exist until the Board decided to fill it and such a decision had not been made.
The Court accepts and agrees with the Board's contention that the SAO post in dispute does not exist unless and until the Board decides to apply the sanction of the parent Department for it. The fact that the Appellant gratuitously applied for the SAO post in dispute as outlined confirms the Court in this finding. It is the Court's firm view that it is the prerogative of the management of the Board to decide when it will apply the sanction for the SAO post in dispute and that unless and until it does so that there is no vacant post in existence to be filled either on the custom and practice claimed by the Appellant or otherwise.
The Court accordingly dismisses the appeal of the Appellant and upholds the Recommendation of the Rights Commissioner.
The Court decides accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd March, 2006______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.