ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003253
Dispute 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, 1969 | CA-00004227-001 | 04/05/2016 |
Date of Adjudication Hearing: 25/11/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Complainant’s Submission and Presentation:
The complainant took up an acting position as Principal Social Worker on 5th November 2012. In July 2013, following a six month review the complainant sought payment of the acting allowance. It is submitted that she pursued this, particularly as colleagues who acted in her role were paid the allowance from 29th April 2013. The complainant was appointed permanently into the post in July 2014 but then discovered that she was not going to be appointed to the relevant point as she was not receiving an acting allowance prior to this appointment. A grievance was raised at the end of which management offered to appoint her from January 2014 instead of July 2014. It is submitted that the complainant should have been appointed into the Principal post on an acting basis with effect from November 2012 and consequently her permanent appointment in July 2014 should have reflected that she was in a higher grade from that date, so that she would not be at a disadvantage when she was appointed permanently. It is also submitted that the “regularisation circular” 017/2013 could be applied. |
Respondent’s Submission and Presentation:
The complainant was employed as a Social Worker Team Leader from 2006 until her transfer to the respondent in January 2014. She was offered and agreed to take on the duties of Designated Chairperson for AAA on an interim basis from 5th November 2012. She was to retain her current terms and conditions of employment. The Moratorium on Recruitment and Promotions in the Public Services – HR Circular 015/2009 stipulated that the authority to sanction the payment of acting allowances was rescinded and this remained in place until the implementation of the terms of the Haddington Road Agreement in October 2013. In July 2014, the complainant was appointed from the National Panel to her current role of Independent Chair of the AAA in Area X. She was appointed at the 3rd point of the scale in accordance with Circular 10/71 on pay and promotion. As a goodwill gesture, following representations from the complainant and her union, it was agreed to amend her appointment from July 2014 to January 2014.
It is submitted that the complainant, like a significant number of Public Servants was subjected to the Moratorium on Recruitment and Promotions in the Public Service May 2009, and was not paid an acting allowance. Her case is in no way different to other Public Servants and by allowing the inclusion of a period of time in which an acting allowance was not paid to be included for incremental purposes would establish a precedent across the Public Service and is contrary to Circular 10/71.
Recommendation:
The complainant seeks to be appointed into the Principal post on an acting basis with effect from November 2012 and consequently her permanent appointment in July 2014 would reflect this.
There was no provision for acting allowances due to the Moratorium Circular 015/2009 and any recommendation for the breach of this would ultimately lead to repercussive effects.
I note the provisions of Circular 017/2013 (The “regularisation of acting posts”) which provide that employees who have not been in receipt of an acting allowance due to the moratorium can be encompassed by the process (Section 6) and the union has argued that having had knowledge that the acting period would be in excess of 3 months the temporary appointment should have been made from day 1 (Section 9). Section 6 states:
“Persons for whom it can be demonstrated that an acting arrangement was appropriately approved and that they meet the criteria set out above, but that due to the moratorium and or financial restrictions, they have not been in receipt of the allowance, will also be encompassed by this process. There must be documentary evidence deeming the individual as being in an acting position, and carrying out the full responsibility of that position. Application of the provisions of this Circular to this group must be by way of recommendation from both the Area Manager and RDPI or equivalent, and approval from the National Director…”
I note that on 27th February 2015, the complainant’s Area Manager made a recommendation but there was no approval.
Section 9 of the Circular relates to periods of acting in excess of 3 months. However, I cannot recommend retrospective application of this as it too would lead to knock on effects.
A comparator was cited (Mr C) who acted in her position. It was confirmed post hearing that he was in fact paid the higher responsibility allowance from 1st January 2014.
I therefore recommend that the complainant accept that the appointment date for her is 1st January 2014.
Dated: 27th February 2017