FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No: ADJ-000006229 CA-000008532-001.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Adjudication Officer's Recommendation ADJ-000006229. The dispute relates specifically to the Worker's claim for retrospective promotion due to the fact that he should have received promotion to Grade 2 Agricultural Advisor in 2009 having been successful at interview. The Employer states that the moratorium on promotions introduced in March 2009 had an effect beyond Teagasc's control. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 21st July 2017 the Adjudication Officer issued his Recommendation as follows:
"It is clear that any attempt at amelioration of the complainant's situation would serve to undermine government policy and the public service agreements, which reflected that policy in the period in question. Accordingly I am not in a position to make a recommendation favourable to the complainant as petitioned".
On the 22 August 2017, the Worker appealed the Recommendation of the Adjudication Officer to the Labour Court in accordance with section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 13th September 2017.
UNION'S ARGUMENTS:
The Union stated that although it is a fact that a public service embargo was in existence when the Worker became eligible for promotion, it is also true to state that the Worker's entitlement to promotion was agreed and in place in advance of said embargo being implemented. Furthermore, the Union argued that a colleague regarded as having equal status in respect of promotion received the benefits of same.
EMPLOYER'S ARGUMENTS:
The Employer cited the moratorium introduced in March of 2009 as the key factor in the change in circumstances which meant the worker could not be promoted at that time. Also, the Employer stated that it had never committed to implement promotions but that all promotions were dependent on vacancies arising. Lastly, the Employer informed the Court that decision to implement retrospective promotion would likely have significant knock-on effects.
DECISION:
This is an appeal by the Union on behalf of a worker of an Adjudication Officer’s Recommendation in relation to incremental credit as it applied to his promotion in 2015. The Adjudication Officer did not uphold the complaint.
A promotional Agricultural Development Officer Grade 2 (ADO 2) competition was held in May 2007. 163 candidates were interviewed over 5 days across 5 interview panels. An overall panel was created by amalgamating the outcome of each of the interview boards and as part of this arrangement it was agreed that the panel would only last for 2 years. It was also agreed that a block of five would be completed as vacancies arose even if this meant extending the panel beyond the two years. The worker was placed 34thon the panel. By the 28thDecember 2008, 31 staff had been promoted from the panel this meant in accordance with the agreement in place the panel had to be kept alive until number 35 was promoted.
It is management’s position that the agreement was that people would be promoted as vacancies arose. The moratorium on filling Public service vacancies came into effect in March 2009 and no posts could be filled without the express sanction of the Department of Public Expenditure and Reform. As part of the moratorium TEAGASC had to reduce their staffing levels by 25 %.
When the delegated sanction to fill vacancies was re-instated TEAGASC moved to appoint the worker in line with the agreement.
The Union on behalf of the worker argued that he should be given incremental credit for the intervening period as he has been disadvantaged in comparison to other people in his block of 5 because of the delay in promoting him. It was their view that this case was unique and that it was within the gift of the Department to rectify the position.
Management advised the Court that they had discussed the issue with their parent Department but had been advised that no additional incremental credit could be granted and that this case was not unique.
The Court having read the submissions of both parties and listened to the oral submissions on the day notes that the employer complied with the agreement by appointing the worker at the first available opportunity. The Court upholds the recommendation of the Adjudication Officer and the appeal fails.
Signed on behalf of the Labour Court
Louise O'Donnell
JD______________________
03 October 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.