ADJ-00012019

ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00012019

Parties: 

Dispute:

Date of Adjudication Hearing: 25th April 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 andfollowing the referral of the dispute to me by the Director General, 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.

Background:

SIPTU were in dispute with the Employer in relation to seeking formal appointment of the Complainant by the Employer to the role of Principal Social Worker

Summary of Trade Union Case:

SIPTU said they are seeking to have the Complainant formally appointed to the role of Principal Social Worker.

SIPTU said that the Complainant works in Adult Social Work Services in a named area and they said that he was moved into that role following the departure of the previous incumbent in 2014.   SIPTU said the Complainant had made formal application to fill this post and had acted in the position for periods in 2010 and 2011.

They said the Complainant was interviewed for the post on 9th June 2011 and he was placed 2nd on the Panel, the No. 1 candidate was appointed to the post.   After approximately 12 months the successful candidate vacated the post and on 1st May 2014, the Complainant as No 2 on the Panel was placed in the post.   SIPTU said that however this was on a Fixed-Term Contract basis.   SIPTU understands that the fixed-term arrangement was borne out of uncertainty surrounding the possible return of the (then) post holder.

SIPTU said the Complainant now has responsibility for approximately 26 social workers and he in turn currently reports to the named General Manager.   They said he works 37 hours per week and he is paid €1,900 per fortnight.

SIPTU said the Complainant raised the issue of his formal appointment on many occasions since 2014 and he eventually lodged a formal grievance on 27th January 2017.   This was submitted in writing to his named then Line Manager and copied to the named CHO1.   He then followed up again in July with the General Manager and he was cc’d on emails exchanged on the matter between the Line Manager and the Head of HR but nothing was concluded.

SIPTU wrote to the Head of HR on 11th October 2017 outlining the Complainant’s grievance and seeking to have him formally appointed.   In response the Head of HR said there was a deal of goodwill towards regularisation of the Complainant’s position, but that there was no defined methodology or process under which this could be objectively achieved whilst also complying with:

• Recruitment licences
• Meritocratic appointment
• Disadvantaging other staff and/or creating precedent

SIPTU said they acknowledged this reply but reiterated the difficulty faced by the Complainant and emphasising the fact that this situation could not grow unadressed and advised of the possibility of a referral to the WRC, but that they would remain available for discussion at local level.

SIPTU said that the Complainant continues to be issued with Fixed-Term Contracts which range in duration from 3 to 8 months and in January of this year he was requested to complete an Application Form entitled “Request for Approval for Temporary Appointment in excess three months” 

SIPTU said given that the Complainant was placed 2nd on the Panel for this post back in May 2011 he should now be appointed as the post now appears to be vacant.

SIPTU said that while the Employer’s response outlines some obstacles to addressing the matter, the alternative, to do nothing is completely unacceptable.   They said the predicament the Complainant finds himself in is not of his own making, but in his attempts to assist management by covering this role through a period of uncertainty, he has found himself in a limbo like situation, where he is neither a Team Leader (his core post) or a Principal Social Worker (the role he actually performs).   SIPTU said that apart from the obvious confusion this causes it would create problems if he was to seek promotion due the uncertainty around his actual title.   SIPTU said that furthermore it remains to be seen if the Complainant’s additional experience as a Principal Social Worker would be factored into the equation in such an event.   It also creates obstacles in respect of how far he can go in managing his Department and prevents him from making necessary changes.

SIPTU said the Employer’s guidance document around Circular 17/2013 outlines the process for the temporary filling of post based on their being under or over 3 months duration.   They said this addresses the question of temporary assignment that run beyond 12 months and states this should only occur on an exceptional basis.   SIPTU said that in this instance the post is necessary and up to 2014 was filled by competition.

SIPTU said that almost 4 years on the post holder has not returned to the post and the Complainant remains in limbo in respect of his security of employment in the post.   SIPTU said that he has already been selected as the 2nd place candidate in an interview and selection process.   SIPTU said the Complainant has successfully carried out all the responsibilities and duties of this post and he continues to so do – they said he must now be formally recognised and appointed to the Principal Social Worker post.

SIPTU and the Complainant said that they were seeking a favourable recommendation that provides him with what would normally be viewed as a basic entitlement. 

Summary of Employer’s Case:

The Employer said they understand that the complaint/claim refers to the extended period of cover in a higher position undertaken by the Complainant and the alleged failure by the Employer to confirm him permanently in this higher position.

The Employer said the Complainant is a permanent employee of theirs, and his substantive post is that of Social Work Team Leader.   They said he has provided cover for the higher position of Principal Social Worker (PSW) on a number of occasions, notably:

• 1st November 2010 to 2nd March 2013   -and-
• 1st May 2014 to date.

The Employer said the Complainant is paid the appropriate rate for the job in the higher position of PSW and he has progressed to be paid at the top of the Incremental Salary Scale.  

They said that this is in line with the HR Circular 008/2016 arising from the Labour Court Determination 21104, 17th December 2015.

The Employer said the Complainant made representations to various officers of theirs seeking confirmation of his appointment as PSW on a permanent basis.   The Employer said that however there is no defined pathway or legitimate process for the employer to concede such a claim.

The Employer said they wished to have it noted that the Complainant is a valuable and valued employee and there are no issues of concern regarding his performance or capacity in the PSW role.

The Employer said they have engaged in a ‘regularisation’ of acting positions in October 2013, under the auspices of the Haddington Road Agreement and as detailed in HR Circular 017/2013 and they said that regrettably the Complainant did not meet the defined criteria, and in particular the provision that the post “must have been acted in on a continuous basis for a least 2 years as of 31st December 2012.”

The Employer said more recently in 2017, they reactivated the Job Evaluation Scheme (JES), but to date this has been limited to Clerical/Admin Grades and does not encompass Health and Social Care Professional Grades.   They said there are national discussions involving National HR and the Trade Unions on the potential expansion of the scope of this Scheme to encompass Health and Social Care Professionals, but said these have not reached any consensus or conclusion at this point in time.

The Employer said it is acknowledged that the Complainant has been undertaking the higher duties in a temporary capacity and on a continuous basis since 1st May 2014, a period of almost 4 years.   The Employer said they have actively explored the provisions of the Protection of Employees (Fixed-Term Work) Act 2003 as a possible vehicle to address the Complainant’s case.   They said however that Act confers protection solely on fixed-term employees holding temporary employment status and the Labour Court in Paul Kelly -v- Louth County Council [FTD 1320] of 25th July 2003 confirmed that:

“An employee cannot be both a fixed-term employee and a permanent employee of the same employer and also

A Claimant who reverts to his substantive grade and whose employment continues at the end of a fixed-term assignment does not have the protection of this Act.”

The Employer said they are obliged to comply with the Public Service Management (Recruitment and Appointments) Act 2004.   The Employer said that voluntary conferral of the Complainant into the PSW position is not available to management, as the making of any permanent appointment to a position governed by Section 22 of the Health Act 2004 by “designation” is not in accordance with the Commission for Public Service Appointments (PPSA) Code of Practice for appointment to positions in the Employer.  

They said the Code requires an open and transparent selection process which is meritocratic; with posts advertised and available to the widest possible pool of candidates and promoted the principles of opportunity.   They also need to be promoting the principles of equality of opportunity.   They said they also need to be cognisant of creating precedent and anything other than an open competitive promotion process will undermine the statutory provisions governing recruitment and appointment. 

The Employer said that in that context the most logical and legal option available to resolve this matter would be to advertise the PSW position.   They said they would agree to progress such a competition as a matter of urgency, and anticipate that the experience gained by the Complainant in the role would be a significant advantage to him in any application.   They said it is noted and acknowledged that this route offers no guarantees, and some degree of risk for the Complainant.

The Employer said the Complainant is a valued employee, and he undertakes the PSW role in a conscientious and diligent manner.   They said his intention to attain the PSW position in a permanent capacity is reasonable and legitimate.   They said that however, as detailed above, they have no available means other than open recruitment to provide a pathway for the Complainant to fulfil his expectations.   The Employer said they have proactively explored a wide range of options to address this matter, but ultimately are constrained by prevailing legislation and Codes of Practice.   They said that any and all disadvantage perceived by the Complainant in not progressing his claim for permanent appointment are entirely unintentional and beyond the capacity of them to resolve.

Based on the foregoing the Employer sought a decision that they had behaved reasonably in all the circumstances. 

Findings, Conclusions and Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a decision setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and submissions made and I have concluded as follows in relation to the claim.  

I note that the Complainant was appointed (on a temporary basis) from 2nd place on a Panel for appointment to the post following an open competition.   I further note that the Complainant has been in the post on a temporary or ‘acting’ basis continuously since 1st May 2012, a period of (more than) 4 consecutive years and has been performing the role to the complete satisfaction of the Employer. (He had also been in the post before that from 1st November 2010 to 1st May 2014).

I note that the Labour Court have repeatedly ruled on numerous occasions that a person performing or ‘acting up’ in a post for a period of 3 or more consecutive years is entitled to be ‘regularised’ or appointed on a permanent basis to that post.

I note that the post in question was advertised and an open competition was held to create a Panel from which the post vacant would be filled.   The Complainant applied for the post and was interviewed on 9th June 2011 and he was placed 2nd on the Panel formed as a result of those interviews.   The person who was placed 1st on the Panel was initially appointed to the post.   This person vacated the post after approximately 12 months and on 1st May 2014, the Complainant as No. 2 on the Panel, was placed in the post.

I note that in confirmation of the outcome of that open competition the Complainant was officially informed of the outcome as follows:   

“Dear B…..

With reference to your interview in connection with the above mentioned campaign, you have been placed 2nd on the order of merit for the above position.

Please note there is only one vacancy to be filled from this campaign.   Should circumstances arise you could come under consideration for this position I will contact you immediately.”

I note that the normal life span of Panel is generally at least 3 years and applicants place in order on that Panel may be appointed to any vacancy in the position(s) advertised is filled in numbered order of merit from that Panel.   This, of course means the Complainant was moved to the post on the basis of his place on a Panel based on his successful participation in an open competition.

I am satisfied that the above should fully satisfy the requirement by the Employers that the post be filled by way of an open and transparent selection process, which is meritocratic, with the post advertised and available to the widest possible pool of candidates and promoting the principles of equality of opportunity.  

I further note that it was confirmed by both parties that there were no financial implications in appointing the Complainant to the post on a permanent basis.

Based on the foregoing I see considerable merit in the claim and it is fully upheld by me.

I recommend that as a full and final settlement of the dispute that the Employer formally appoint the Complainant to the Principal Social Work post and that this be completed within 4 weeks of the date of this decision/recommendation.

For the removal of doubt, I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and it cannot and will not be used or quoted by either party, or any other party in any other case. 

Dated:           30 May 2018  

Workplace Relations Commission Adjudication Officer: Seán Reilly 

Key Words: Seeking formal appointment to Principal Social Worker Role.