ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00007632

Complaint(s):

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-00010282-001	16/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00010282-002	16/03/2017

Date of Adjudication Hearing: 29/01/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 13 of the Industrial Relations Acts1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

At the Hearing, it was accepted that both Complaints were effectively almost identical and could be covered by one Recommendation.

1: Summary of Complainant’s Case:

The Complainant is employed as a general Operative with the Respondent Local Authority. However, since December 2014, he has been an Acting Supervisor primarily in the Waterworks Section. In the period since January 2014 he has been successfully placed on two Panels for Permanent Appointment -March 2014 and July 2014 respectively. On this basis, the Respondent’s Union is claiming that the Complainant be appointed in a Permanent Capacity forthwith and without any further Interviews or Internal Staff Competitions

The Complainant is a completely innocent victim of the vagaries of the appointments /sanctions system of the Local Government Service in recent years, the need for Dept. sanctions and the approval process with Irish Water. He has never actually been confirmed in a Permanent Post as Supervisor. His Temporary Acting appointments have been by way of Manager’s Order.

The Respondent Local Authority was not unique in this situation. The problem was effectively country wide. In February 2016, following WRC intervention a major Independent Nation-wide Review of Permanent/ Acting positions was carried out by a Respected Consultant- Mr. Joe McDermott. Mr. McDermott effectively recommended that the clear majority of Acting Posts be regularised. Standard Local Government appointment mechanisms were to be employed -in this case confined staff competitions.

The Union maintained that asking the Complainant to now participate in a Confined Competition for confirmation in a permanent status in his acting position (particularly as he had already twice been placed on a permanent panel) was completely unnecessary.

2: Summary of Respondent’s Case:

The Local Authority representatives were, at the oral hearing, not unsympathetic to the Complainant’s situation. His situation was far from unique throughout the Country. A National Process facilitated by the Independent Facilitator/Consultant had been agreed between the Unions and Management Representatives at central Level. This was the McDermott Report of July 2016.

To effectively make a special case for the “direct” appointment of the Complainant would be contrary to the agreed steps and procedures in the Report and would effectively lead to it’s unravelling as other staff members would inevitably make similar claims. Reference was made to LCR 21516 and LCR 20634 where the validity of this Management posit was upheld by the Court.

A confined competition for the permanent position at the heart of this claim would be organised as soon as possible.

3: Findings and Conclusions:

The Recommendation of the Labour Court referenced by the Respondent (LCR 20634) is worth noting and I quote directly below.

“Having considered the submissions of each of the parties the Court finds that the re-grading of staff in Local Authorities is regulated by legal, public policy and collective agreement constraints. In this case the Claimant seeks to be re-graded on a personal basis outside of those constraints. The Court is aware that there is a significant number of Local Authority employees that find themselves in the same position as the Claimant and who would seek comparable preferential treatment were the Court to recommend concession of this claim. The Court is also aware that there are discussions underway, under the auspices of the Haddington Road Agreement, to regularise the status of staff in long term acting positions. Taking all of these factors into account, the Court recommends that the Claimant’s case be considered in the context of whatever agreement emerges from those talks and accordingly does not recommend concession of the Worker’s claim in isolation as sought in this case.”

In the case in hand similar arguments apply and the concession of a claim for a direct appointment of the Complainant, without going through the standard procedures, would not be wise.

However, as a caveat I would also recommend that the Confined Competition referred to in the Oral Hearing be organised and completed as expeditiously as possible.

In final conclusion and overall summary, the Union Claim as set out in Complaints CA-00010282-001 and CA-00010282-002 is not conceded.

4: Recommendation.:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.


Act	Complaint/Dispute Reference No.	Summary Recommendation. Please refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00010282-001	Claim not Recommended
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00010282-002	Claim not recommended.

Dated: 01/06/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee