FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. An appeal of a Recommendation of a Rights Commissioner no: r -150626-ir-14/GC.
BACKGROUND:
2. A vacancy arose for the position of Rate Collector when a Worker retired. The person appointed to take up the role decided to revert to his previous position on the Friday of his first week. Dublin City Council said there was an urgent need to fill the vacancy and the Executive Manager decided on a temporary basis to upgrade a Grade V Worker to fill the vacancy until the post was filled on a permanent basis.
- The Union said there is an agreement in place to fill vacancies using suitability and seniority. It said the Claimant a Grade VI Worker had worked as a rate Collector in 2007 and had the suitability and seniority to fill the post, but was not given the opportunity to do so.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 1st May 2015 the Rights Commissioner issued the following Recommendation:-
- I note the Council’s letter to IMPACT date 12thMay 2014 states:
“In the circumstances where approval is granted to fill a post on an acting basis, the Council remains committed to the acting arrangement which provide for the Executive Manager choosing the “most suitable/senior officer” to carry out the higher duties”.
I note the Executive Manager’s responsibility to choose the most suitable/senior officer in appointing employees to carry out acting duties. However, in this case, the Claimant was a senior officer who had some previous relevant acting experience in the position and yet he does not appear to have been informed why he did not fulfil the suitability requirement. I recommend that in the future, the Council should be more forthcoming and transparent when putting their commitment outlined into practice. In the particular circumstances of this case, I find the Claimant should be compensated in the amount of €2000 in full and final settlement of his grievance with the Council. This should be recognised as a once-off unique situation relevant to the Claimant alone and not to be used as precedent.
- I note the Council’s letter to IMPACT date 12thMay 2014 states:
A Labour Court hearing took place on the 30th July 2015.
UNION’S ARGUMENTS:
3. 1. From July 2007 to September 2007, the claimant acted as a Rate Collector. He was also acting as an Administrative Officer Grade 7 from 2008 until the end of June 2014.
2. The custom and practice in previous acting up situations was to install a Grade 7 Officer who may not even have worked in the Rates Office.
3. The Claimant has worked in the Rates Office for a number of years but was bypassed for the Senior Acting post.
EMPLOYER’S ARGUMENTS:
4. 1. The newly appointed Rate Collector notified HR he wished to revert to his previous role. This was unique, exceptional and unanticipated set of circumstances.
2. It was decided to fill the vacancy on an acting basis pending the permanent filling by competition. The most suitable person was appointed.
3. The Council does not accept that the Claimant was unfairly passed over or that there was a breach of acting arrangements in this regard.
DECISION:
The Court has carefully considered the submission of the parties to this appeal.
The Court notes that the agreed arrangement for the filling of temporary vacancies is that the most suitable senior person is appointed. That arrangement gives management a wide margin of discretion in deciding on suitability. However, where it is proposed to appoint a less senior person over a more senior person the normal requirement of good practice dictates that the rationale for the decision should be explained.
In these circumstances the Court can see no reasonable basis upon which it could interfere with the recommendation of the Rights Commissioner.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
5th August, 2015Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.