ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000070

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946	CA-00000114-001	07/10/2015

Date of Adjudication Hearing: 09/12/2015

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant has been an employee of the respondent local authority since 1998. In January 2006 he was offered and accepted an Acting Grade V position in the Stores Department following the retirement of the Grade VI in that area. This continued until November 2014 when it was terminated without agreement and in May 2015 the Stores Department closed. Notwithstanding the fact that the acting allowance terminated in Nov 2014, the complainant continued to exercise the same duties until May 2015 when he was redeployed to the Finance Department as a Grade III. There was no discussion with the complainant or IMPACT on the impact this would have for him and his grading and it is contended that 9 years acting goes beyond what is a reasonable timeframe and that he should be offered a Grade V position within the local authority.

Respondent’s Submission and Presentation:

The respondent contends that this is a cost-increasing claim and is precluded under the provisions of the Public Service Agreements. Appendix 6 of the Haddington Road Agreement dealt with the regularisation of long-term actors and committed to bringing the issue to a conclusion as part of the workforce planning process. Discussions took place with the unions at a national level and following an LRC process in relation to acting arrangements in South Dublin County Council, it was agreed between the parties that confined competitions would be held for posts sanctioned under Workforce Planning which were being filled by long-term actors. The Respondent is compliant in all respects with this national agreement. The complainant was afforded the opportunity to apply for the Grade V positions which were sanctioned under the Workforce Planning exercise on a confined basis in line with the agreements at national level. There is no practice for positions to be awarded without competition in the Local Authority sector, which is a position protected by management and unions alike.

At all times the complainant’s employment as Grade V was referred to as acting up. The Labour Court has noted in LCR 19753/10, (North Tipperary and IMPACT), that ‘there is no agreed or established limitation on the length of time during which a post can be filled in an acting capacity.’

In addition, the Court has found that cases such as this cannot succeed outside agreed procedures. LCR 20634, (Louth County Council and Paul Kelly) refers. In that case the Court found that ‘the re-grading of staff in Local Authorities is regulated by legal, public policy and collective agreement constraints’. The Court noted that discussions were provided for under the auspices of the Haddington Road Agreement to regularise the status of staff in long-term acting positions and recommended that the claimant in that case be considered in the context of whatever agreement emerged.

Conclusions:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

There are two issues for me to consider;

That the claimant be appointed at Grade V level
The payment of the acting allowance to the claimant between November 14 and May 15

I have considered the submissions of both parties and am guided in particular by the Labour Court decision in LCR 21001 (Dublin City Council and IMPACT) which found in circumstances similar to those in this case,

’that the parties entered into an agreement at national level regarding the manner in which the Local Authority sector would deal with the issue of long term vacancies that had been filled in an acting capacity because of the effect of the financial cutbacks and the employment embargo. That agreement made no provision for compensation for long term actors that were not successful in competitions for vacant posts identified and filled in the relevant local authority. As Management is complying fully with the terms of that agreement the Court does not recommend concession of the Union's claim’.

The respondent has applied the national agreement in full in this instance. Accordingly, I do not see merit in this part of the claim and it is rejected by me.

Notwithstanding the fact that the complainant’s acting position was terminated in November 2014 he continued to carry out the functions of Grade V until May 2015, a fact uncontested at the hearing. I therefore recommend that he be paid the acting allowance and entitlements in full for that period of time.

Recommendation:

1) The claim to have the claimant appointed at Grade V level is rejected

2) That the Claimant be paid the acting allowance and associated entitlements from November 2014 until the date of his transfer in May 2015.

_________________________

Adjudication Officer

Dated: 8^th March 2016