LCR21240

The dispute concerns 7 workers who, variously between December 2009 and December 2011, successfully competed for internal promotion in the Respondent organisation. The Respondent was not granted prior approval from its parent Department (Agriculture, Food and the Marine) to advertise and fill the posts concerned. In the absence of such approval and because of the moratorium on recruitment and promotions which formed part of general Government policy at the time, each of the workers was appointed as ‘designate’ in his or her respective promotional position. The workers received the additional annual leave allocation which their particular promotional post attracted but did not receive the rate of pay associated with that post. They also continued in the grade held prior to their promotion. The Unions’ claim is that their respective members should be appointed to the correct salary scale for their promoted grade, with effect from the relevant date on which their promotion took effect.

The dispute was referred to the Court by the Workplace Relations Commission on 7 April 2016, following a conciliation conference.

The Parties’ Positions

The Unions submit that the members on whose behalf the claim has been brought were promoted following a rigorous competitive process and are currently undertaking the full range of duties of the grades that they now occupy (and this is not disputed by the Respondent). The Claimants each successfully served a six-month probationary period following their promotion.

The Unions rely, in particular, on a letter dated April 2013, signed by the then Chief Executive of the Respondent, and sent to each of the Claimants. The letter confirmed their position as “Designate” but concluded by stating that, “The Management of BIM are committed to progressing your promotion to the appropriate grade as soon as it is practicable to do so.” The Respondent submitted a business case to the Department in December 2013 seeking sanction for the promotions. Sanction was not forthcoming at that time.

The Respondent’s case is that it is a non-commercial State agency; its funding is controlled entirely by the Department of Agriculture, Food and the Marine. The Respondent is also subject to the moratorium on recruitment and promotion introduced by the Financial Measures in the Public Interest Act 2009. In circumstances where the Respondent sought sanction from its parent Government Department to resolve these claims but sanction has been refused, the Respondent submits that it cannot resolve this dispute on the terms sought by the Unions. In addition to the 2009 Act, the Respondent relies on the terms of the Public Service Agreement 2010 – 2014 in support of its position.

The Respondent, in its submission to the Court, placed significant emphasis on the wording of the letter under cover of which the Complainants were given their employment contracts. The letter in question provided “Given the current Government’s moratorium of [sic] promotions and salary increases you will transfer to the [title of post] at your current grade and salary.” The Respondent’s position is that the Claimants, having executed the contracts offered to them as of the date of their promotion, have entered into binding contractual relations with the Respondent on terms and conditions they fully understood at the time of signing. Furthermore, the Claimants, it is submitted, as existing employees of the Respondent, were fully aware of the effect of the moratorium on recruitment and promotion and were happy at the time to accept the posts offered on the terms set out in their written contracts and they cannot now seek to resile from those terms.

In relation to the 2013 letter issued by the CEO to the Claimants, the Respondent submits that they were issued without the Department’s sanction or approval and are consequently void and of no effect. In the alternative, the Respondent submits, having regard to the wording of the letter, it is not “practicable” to progress the Complainants’ promotion at this time as the Respondent does not have devolved authority to recruit or promote staff. Specific authority must be given by the Department in each case.

The Respondent informed the Court that it was granted ‘delegated sanction’ by the Department between November 2015 and January 2016 during which period it proposed to conduct an internal competition to fill the posts held by the Complainants. The Unions’ view is that the process proposed by the Respondent would have required the Complainants to compete for the jobs they had been doing successfully for a number of years by that stage.

The Respondent accepts that the Complainants are each performing in their promoted positions to a high standard. Nevertheless, it remains the case that no sanction has been granted by the Department “to promote them in relation to grade and remuneration in line with the roles they perform within the organisation.” Finally, the Respondent submitted that it does not accept that it is possible to provide retrospective sanction for actions that were inconsistent with contemporaneous Government policy. Nevertheless, the Respondent’s representative did concede that were some element of retrospection to be recommended by the Court, the earliest date from which it could have effect would be a date in November 2015 when the Department ceded delegated authority to the Respondent.

Recommendation

The claimants were promoted following an advertisement and competition at a time when there was a moratorium on recruitment and promotion in the public service. They have been performing to the required standard in their new roles for a period in excess of five years. The Court has consistently acknowledged that the moratorium has been binding and has reflected this in its recommendations. However, unlike other cases that have been before the Court where appointment to a promotional post has been sought the claimants in the instant case are now well established in their promotional positions without the appropriate financial reward.

The Court is of the view that in the interests of good employment practice and given the particular circumstances of this case the claimants should be remunerated at the level that is commensurate with the positions to which they have been appointed and the duties of which they perform with effect from December 1st 2015.

The Court so recommends.

This recommendation is to be regarded as having no precedent value and should not be relied upon or cited in support of any other claim, howsoever arising.

Signed on behalf of the Labour Court



Alan Haugh
27 May 2016.______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.