Act

Dispute Reference No.

Date of Receipt

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

CA-00017583-001

22/02/2018

The Worker claims that his employer has failed to pay him retrospectively for the work he has carried out over the last 9 years, prior to the eventual approval for an upgrade of his post to that of a Maintenance Officer in February 2017.

The Employer claims that the Worker carried out many of the duties of the Maintenance Officer grade but due to the 2009 moratorium on recruitment and promotions in the Public Service it had no authority to recruit, appoint, promote or sanction payment of an allowance for the performance of duties at a higher grade.

The Worker began his career as a Carpenter with his Employer in 1971.

In 2001 he assumed additional responsibilities akin to Clerk of Works on a major new building programme at his place of employment. In 2008 following the retirement of the then Maintenance Officer, the Worker took up the supervisory duties and responsibilities on all the major refurbishing work for the Employer up until his retirement from his permanent post in 2015. The Worker continues to be employed by the Employer in a temporary capacity following his retirement.

The Worker said that in 2017 his grade as carpenter was finally regraded to one of Maintenance Officer and the Employer has refused to give any retrospective payment to him for the previous nine years that he held the role.

The Worker maintains that the Employer has agreed and accepted that he has been doing the work of a Maintenance Officer since 2008. The Worker suggests that he is owed the difference between the two posts over a nine-year period in retrospective payments. He said that one of his real concerns is that his pension should reflect the actual grade – Maintenance Officer – that he worked rather than the grade that he was paid.

The Employer agrees that the Worker commenced employment in 1971 as a craft worker and retired from his permanent post in August 2015, and that he continues in a temporary capacity following his retirement. The Employer said that in effect the Worker is seeking to have his appointment to the grade of Maintenance Officer back dated to 2008.

The Employer said that it was required by Departmental Circular in relation to the control of employment back in January 2009 to ensure adherence to employment control measures and to proactively reduce the payroll costs in 2009, which included an immediate recruitment pause in the filling of all vacancies. By 30 March 2009, there was a complete moratorium on recruitment and promotions in the Public Service. Posts that became vacant during the moratorium were not filled and work would be reallocated or reorganised both within and across the public sector organisation.

The Employer said that the Worker was one of those workers who was left in a situation where he had to carry out additional tasks and work originally carried out by the previous incumbent of the role. The Employer said that it had no authority to promote the Worker into the post on an ‘acting’ basis. The Employer said that the Worker was entitled to an allowance for the role that he held at the time as a Craftworker and I should take note that that allowance was not payable to Maintenance Officers or those carrying out such duties.

The Employer said that following the implementing of the Haddington Road Agreement the Worker applied to be regularised under the applicable Circular at that time. The Criteria for the qualification for regularisation were,

1 – the process had to be cost and whole time equivalent (WTE) neutral,

2 – the substantive post to be filled had to be vacant. There would be no backfilling of any consequential vacancy,

3 – Any post for which regularisation is proposed must have been acted in on a continuous basis for at least 2 years at 31 December 2012 and the acting arrangement must have continues since that date.

The Employer said that the Worker was not appointed in an acting capacity and therefore did not qualify for regularisation, as the Maintenance Officer post was not filled due to the moratorium, the WTE and budget no longer existed and therefore the post was not cost or WTE neutral. A specific appeals mechanism was arranged by the Employer and the Trade Unions to allow for appeals to an external adjudicator. The Worker appealed the decision but was not successful as it did not meet the criteria of the applicable Circular governing the regularisation.

The Employer has stated that on 21 February 2017 agreement was reached to upgrade a number of posts of Craftwork to that of Grade V, including the post held by the Worker, who had retired 18 months previously. The Employer said that as with all upgrades the date of upgrade is from the date of approval of the upgrade and that there is no retrospection. The imposition of the Government moratorium on the Public and Civil Service was in place until mid-2015 therefore the respondent was precluded from authorising the filling of any posts prior to the end of that moratorium. The Employer, although recognising the good work of the Worker during his time, said he is one of plethora of public servants who made similar additional contributions during the moratorium. Unfortunately, any upgrades of posts are in effect from the date of that decision and there is no retrospection.

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

Having carefully considered the submissions provided from both sides it is obvious that the Worker is held in very good standing by the Employer and he remains employed by the Employer after his retirement.

The Worker was employed with the Employer at a very difficult time in our history, due to the economic recession, where public servant’s employment conditions had suddenly and exceptionally changed. He found himself taking on additional duties as a Maintenance Officer and carried out those duties without any hesitation until his retirement. He was paid an allowance as a Craftworker at that time, an allowance not payable to a Maintenance Officer. I note where the Employer said that the Worker was not appointed in an acting capacity and therefore did not qualify for regularisation. I note that a specific appeals mechanism was granted to cater for staff within its employment to allow for them an opportunity to make their case to an external adjudicator. I note he took up that opportunity to Appeal to an external adjudicator but his application was not successful.

It is clear the Worker has found himself in a disappointing situation, carrying out additional work without appropriate compensation for his efforts. I note that many public servants found themselves in very similar situations, where the work burden was shared among those who were left within the workplace, and in many cases the burden was not shared equally. The Worker is one of a generation of public servants who have given their all and more in their public service. However, unfortunately, I am satisfied that his request to the respondent is beyond what constitutes a well-founded request in the wider circumstances of the facts of the case and I am satisfied that the Worker’s case cannot succeed.

Industrial Relations Acts - Maintenance Officer - case cannot succeed