Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00008883-001

21/12/2016

The complainant had agreed to undertake an ‘acting up’ position at Grade Seven in the Local Authority structure.

She volunteered for the position and it did not attract any additional payment.

She remained in the position for four years on the basis of bi-monthly renewable contracts

In due course the position was approved for filling on a permanent basis and the complainant was given notice of the termination of her tenure in the position and it ended on March 2^nd 2016.

She quit her employment October 31^st 2016.

The complaint was referred to the WRC on December 21^st 2016.

It is agreed that the complainant undertook the acting up assignment on the basis that she would not receive any increased remuneration and she did so out of a commitment to ensure that the work of her department would not be adversely affected by not having someone in the post.

The position was subject to review on a bi-monthly basis.

But in March 2012 the parent Department that a payment for ‘acting-up might be made where this was a result of ‘critical operational necessity’.

She first raised the non-payment in February 2013 based on the above .The complainant’s union first wrote seeking payment of the allowance in August 2016.

The respondent had every opportunity to apply for sanction to pay the allowance but declined to do so. In additions the complainant had regular conversations with the HR department about the possibility of being paid for her acting up. At the time she accepted that resources were an issue and did not pursue her case.

The total loss to the complainant over the four year period is €21,507.

The respondent raises a preliminary issue in relation to time limits.

The dispute, if any occurred in March 2012 when the complainant entered into the agreement.

It relied on Labour Court Recommendation 230547, Galway City Council v SIPTU wherein the Labour Court refused to consider a claim for payment of loss of earnings when the claim had been made three years after the loss occurred. On this basis, the respondent says that the claim by the complainant is also ‘out of time.’

On the substantive matter the respondent says that when the previous incumbent in the position retired the complainant volunteered to fill the position.

She understood clearly that there would be no additional payment or acting up allowance attached to the position. She was not the only member of the Council’s staff to undertake an acting up assignment on the same basis.

The position was renewed every two months and the complainant had an opportunity at each point of renewal to step back from the positio9n if she was unhappy about the terms under which it was being performed. However, her continued acceptance of the terms of the appointment included the fact that there was no additional payment.

While it is true that the parent Department had issued approval for payment in such cases this was rescinded soon afterwards and the respondent was not in a position to make any payment.

The respondent has made a submission on the delay aspect of the case.

In fact the LCR referred to above is not particularly applicable to the facts of this case, although the general principle enunciated by the court is important and accepted.

Also of note is that the complaint was referred to the WRC on December 21^st, 2016 just under two months after she ceased to be an employee of the respondent but over nine months after she was given notice of the termination of her acting up period (and eight months after she actually ceased acting up).

While an adjudicator has a wider discretion in relation to complaints under the Industrial Relations Acts, delay in the submission of a complaint is something which must be considered.

It can be seen as an indication that a complainant did not feel sufficiently strongly about the issue around the time it happened to actually make the complaint, and that it was only after a lengthy period of gestation they felt moved to lodge it.

Such delay will generally tell against a complainant, and in addition to the point above also to avoid prejudice to a respondent’s right to defend such a complaint reasonably contemporaneously.

In addition, the general principles underlying most of our employment statutes is that a successful complainant may only be compensated for losses occurring within a cognisable period, as it is called, and that is within six months of the complaint being made.

However, what is fatal to the current complaint is the complainant’s initial and, more importantly her continuing acquiescence in the terms of the acting up appointment.

It would be uncommon in the public service that a person would act up without some form of allowance, especially for the duration the complainant did in this case. It would be easy to imagine situations in which a person’s good will might be unfairly exploited as they sought, perhaps, to gain approval in the eyes of management and agreed to act up without pay.

That is not the case here. The complainant is a senior local authority official and works in a highly unionised environment.

And, fatally for her claim, she accepted renewal of the contracts every two months, despite being fully aware that it would continue to be unpaid having initially volunteered for the position.

She deserves great credit for her dedication and professionalism, and for her commendable sense of public service in agreeing to do so.

But having done so for almost four years she has undermined her claim for payment.

For the reasons set out above I do not recommend in favour of Complaint CA-00008883-001 and it is dismissed.