FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TEAGASC - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Claim that a technician who was acting in a higher grade for a long period should be confirmed as permanent in that grade
BACKGROUND:
2. The worker has been employed as an Administrative Officer Grade 4 since 1993 based in Moorepark Food Research Centre, Fermoy, Cork. From 6th August, 2004, to 21st May, 2007, he was appointed to an Acting Grade 5 position until further notice. In August, 2006, a review of the Administrative functions at the Research Centre was undertaken by Deloitte and Touche and, following their report, new structures were put in place. In October, 2006, the Union wrote to Teagasc seeking that people in an acting-up position should have their positions regularised and specifically that the worker concerned should be confirmed as Grade 5. Teagasc confirmed that it was not possible to do so.
The dispute was referred to the Labour Relations Commission (LRC) and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 29th July, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 8th April, 2010, in Kilkenny.
UNION'S ARGUMENTS:
3. 1. When the worker's replacement was appointed as Finance Manager in May, 2007, the worker essentially had to train him in and continue with the Grade 5 duties until a handover became feasible. He also was asked to take on additional duties to cover his replacement's maternity leave in June, 2009.
2. The worker has not been treated in a fair manner by Teagasc. He was required to work excessive hours for more than a two-year period to cover higher level duties but has not been rewarded for doing so.
TEAGASC'S ARGUMENTS:
4. 1. The worker was offered and accepted the acting Grade 5 post on a temporary basis in August, 2004. At no time was the worker given any expectation that the arrangement was on a permanent basis.
2. Circulars 21/74 and 29/80 do not state that any person who is in acting position for longer than 12 months be regularised at the higher grade, as has been suggested by the Union. These circulars state that the position should be "filled by the promotion of a suitable and qualified officer".The worker had the opportunity to apply for the post he was acting up in but was unsuccessful.
RECOMMENDATION:
The claim before the Court concerns one employee who was acting up in a Grade V position for a significant period of time to be confirmed as permanent in that grade.
The claimant acted up in the Grade V position from 6th August, 2004, until 21st May, 2007.
The employer submitted that when he was required to act up in the Grade V position, he was informed by letter of the reason for the temporary assignment, which related to a review of the overall administrative functions which was being conducted at time by Deloitte and Touche. At the completion of the review, the claimant was given the opportunity to apply for the Grade V position, however, he was unsuccessful and reverted to his substantive Grade IV grade. The employer submitted that it had no scope to regularise him in a permanent Grade V post and in any event there are no such posts currently available.
Having considered the submissions of both parties and having reviewed the terms of the acting up appointment, the Court is satisfied that although the acting up post was for a considerable period of time, its term was strictly in accordance with his appointment to the post. While the Court is satisfied that the claimant could have been under no misapprehension about the terms of the acting-up position, it is understandable that, due the length of time, he became embedded in the position.
Furthermore, the Court notes that while in the acting-up position the claimant achieved the highest possible standard on his Performance Appraisal Reports and notes his willingness to co-operate with the employer whenever required.
Taking all factors into account in this case, the Court does not recommend in favour of the Union’s claim that the claimant be confirmed as permanent in Grade V, however, it recommends that he should be given every opportunity in line with the Deloitte and Touche recommendations, to assist him achieve an upgrade in his position within the organisation.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th April, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.