ADJ-00005203

Complainant

Respondent

Anonymised Parties

A Senior Executive Officer

A Local Authority

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-00007271-001

30/09/2016

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

CA-00007271-002

30/09/2016

The first dispute is in relation to a claim by the complainant’s union that the respondent has failed to pay an acting allowance to the complainant for a period of nineteen months.

The second dispute is in relation to a claim by the complainant’s union that the respondent failed to appoint the complainant to a senior management position even though she had qualified under PAS process.

First Complaint:

The complainant has been carrying out the full duties of Senior Executive Officer (SEO) since the retirement of the previous incumbent in July 2013.

Regulations allow for this payment.

Two colleagues of the complainant in similar senior roles were paid the allowance from the time they undertook the higher responsibilities.

The complainant only received the allowance from February 2015.

Second Complaint:

The complainant has gone through the PAS process and has qualified for the post through competition and still has not been appointed to the post despite being next on the panel.

In line with commitments in the Haddington Road Agreement and with developments in other local authorities the filling of the position should come from the Confined Panel.

This particular issue relates to this local authority and has no implications for other authorities or other candidates for placement.

First Complaint:

The respondent accepts and acknowledges that the complainant undertook the role of SEO but the respondent did not have approval to formalise an acting arrangement and consequently were not in a position to pay the acting allowance.

Second Complaint:

It is a requirement that appointments to senior permanent posts within the Local Authority Sector are made on the recommendation of the Public Appointments Service (PAS).

The candidate recommended by PAS was the person appointed to the post.

Having regard to the procedures and requirements for appointment to the post of SEO the respondent is not in a position to appoint the complainant to that post.

The complainant is a full-time permanent employee of a local authority commencing employment in 2002. The complainant is at present working at SEO level on a Temporary Contract under protest pending the resolution of the dispute.

The complainant was requested in July 2013 to take on the position of SEO in an unpaid acting capacity due to the moratorium on recruitment. Her portfolio was expanded in July 2014 but her position remained unpaid and acting.

Following submission of the Authority’s Workforce Plan and other representations the Dept. of Environment, Community and Local Government sanctioned a fixed term contract subject to the proviso that “acting arrangements for this post must cease on the awarding of the 2 year contract.” The complainant was successful in a confined competition and was appointed with effect from February 2015. The complainant was paid accordingly. In December 2015 the complainant corresponded with PAS and was advised that potentially she would be number 2 on the confined Order of Merit for vacancies in her Region and number 1 as regards vacancies in her Authority.

In May 2016 the complainant’s union wrote to the Authority’s Personnel Officer stating that as the complainant was No. 1 on the confined panel she should be appointed to the post on a permanent basis. On 13 June 2016, having received no reply, the union again wrote to the Personnel Officer and quoted from a letter dated November 2013 from the LGMA to each County / City Manager as follows:

“It has already been agreed that any vacancies arising in any particular grade will be filled by confined competition subject to the availability of suitably qualified candidates. The only exception to this being where the post is required to be filled through the PAS.”

The letter noted that the complainant had already gone through the PAS process.

The next day the Personnel Officer signed an Application Form seeking permission for a permanent appointment to be made to the position that the complainant had been filling on a temporary basis. The application stated that “it is proposed to fill this post from the existing Public Appointments Service Panel (open).” Sanction was received from the Dept. for the position to be filled by open competition. The position was filled by a person from that panel. The complainant was not in a leading position on that panel.

It should be noted that the Personnel Officer has since retired and was not present at the hearing.   No definitive reason was therefore advanced as to why the Application Form specified that the position would be filled from the open panel. What was stated on behalf of the Authority was a belief that only a person on a long-term acting contract could be appointed from a confined panel. The complainant was on a temporary contract which had the proviso that acting arrangements must cease on the awarding of such a contract.

The union representative had criticised the lack of meaningful negotiations on the Authority’s Workforce Plan which could have dealt with these issues. Examples of how other Authorities dealt with similar matters were noted. Mention was also made in relation to concerns expressed about inconsistencies that have arisen in candidates’ performances in the confined competition as compared with the open competition and the possible role of psychometric testing in this regard. Important though these matters are I do not intend to make any comment in relation to these issues.

Complaint No. CA- 00007271-001:

Circular Letter LG(P) 08/12 in Clause 4 states:

“Where an exception is approved, the acting up allowance will only be payable where the acting period exceeds a continuous period of 84 days.”

I recommend that the complainant be paid the appropriate acting allowance from July 2013 to 2 February 2015.

Complaint No. CA-00007271-002:

It is clear that no concerns or complaints exist in relation to the complainant’s job performance. The Authority appointed her to a temporary position in February 2015 having requested her in July 2013 to take on that position to cover a vacancy arising from the holder’s retirement. They expanded that role the following year. It would appear however that the complainant then fell into an unfortunate situation when she was successful in being appointed to the temporary position.   No satisfactory explanation was given as to why the Authority applied to the Dept. for permission to make a permanent appointment from the open panel but the result was fatal for the complainant’s chances of being appointed.

I have considered carefully all the matters before me. It must be accepted that an appointment has been made to the specific position in dispute and that appointment must stand. I recommend, however, that the complainant be appointed to the next permanent SEO vacancy in the Authority, subject to the assurance given by the union that this dispute relates to this Authority alone and has no implications for other authorities or for the placement of other candidates on panels.