ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00019373
Parties:
| Worker | Employer |
Anonymised Parties | A Laboratory Technician | A Health Service Provider |
Representatives | The Respondent was represented at the Hearing by an internal HR Public Analyst |
Disputes:
Act | Dispute Reference No. | Date of Receipt |
CA-00025281-001 | ||
CA-00025282-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
The Worker confirmed at the Hearing that the dispute under the reference CA-00025282-001 was withdrawn as this was a duplicate to the dispute in the instant case.
Background:
The Worker has been employed by the Employer as a Laboratory Technician for a number of years. In 2015, the Worker applied for inclusion on a promotional panel for the post of Senior Laboratory Technician and was placed third. The panel became active on 21 July, 2015. Two posts were filled from the panel, leaving the Worker next in line. Two further vacancies occurred through retirement, in December, 2016 and April, 2018. At a meeting with the Worker’s Trade Union on 23 April, 2018, the Employer’s HR representative confirmed that an application had been made the previous month for a vacancy to be filled. This was consistent with the Union’s previous understanding. At 17:58 on 24 September, 2018, the Worker and other staff were informed by e-mail that the life of the panel was to expire two minutes later. On 23 October, 2018, the Worker submitted a grievance to the Employer concerning the failure to offer her a position “despite vacancies and despite the panel being active”. The Worker has exhausted the internal grievance procedures without the matter having been resolved to her satisfaction. The Worker is seeking adjudication of the dispute in accordance with the provisions of Section 13 of the Industrial Relations Act 1969. |
Summary of Worker’s Case:
The Worker’s arguments in relation to this dispute can be summarised as follows: · It was agreed by the Employer on 23 April, 2018 that “Management will progress the filling of one senior post”. It is a basic principle of industrial relations and, indeed, of commercial life generally that agreements should be honoured. The Labour Court stated in the case of Aer Lingus & A Group of Workers LCR21777 that “agreements between parties should remain in place until replaced by new agreements”. No indication was given to the Worker or to her Trade Union that the agreed process of the filling of a senior post had been stymied in any way until two minutes before the closure of the panel on 24 September, 2018. · The Worker had a legitimate expectation that, being the next on the promotional panel and the Employer having conveyed to her that it was acting to fill the vacancy from that panel, that she would be appointed from that panel. Moreover, it is an implied term of the contract of employment between the Worker and Employer that both parties are obliged to conduct themselves in a way that can allow each other to have trust and confidence in each other. The Worker regards the Employer’s failure to appoint her as a breach of that duty. The Worker seeks a recommendation that she be appointed to the post of Senior Laboratory Technician with effect from 24 September, 2018. |
Summary of Employer’s Case:
The Employer’s arguments in relation to this dispute can be summarised as follows: · The panel on which the Worker had been placed expired after a period of three years in July, 2018, which is the maximum length for a panel as determined by the National Recruitment Service. · It was agreed on 23 April, 2018 that the filling of one senior position would be progressed. It was also agreed at the same meeting that the filling of two entry grade posts would be progressed. Approval for the filling of three posts was sought and received. However, none of the posts have been filled to date as a result of a slowdown in recruitment. Even if the Worker had been offered the senior post in 2018, she would not have secured a contract for a senior position. · As there is a new panel currently in place on which the Worker has been placed second, management would be supportive of securing a senior position for her. However, the first placed person on the new panel has not been appointed to date and would be discommoded if the Worker was appointed from the panel out of turn. |
Findings and Conclusions:
This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim in relation to promotion. I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.
The key facts in relation to the dispute were not in dispute between the parties, namely: · The Complainant applied for inclusion on a promotional panel for the post of Senior Laboratory Technician in 2015 and was placed third. This panel was active from 21 July, 2015 to 24 September, 2018 and two posts were filled from that panel on its expiry leaving the Worker next in line. · There was an agreement between the Employer and the Worker’s Union on 23 April, 2018 (prior to the expiry of the promotional panel) that the filling of one Senior Laboratory Technician post would be progressed. Approval for the filling of this post was received prior to the expiry of the panel but the Worker was not offered a contract for a senior position as a result of a slowdown in recruitment. · The Employer has constituted a new promotional panel for the post of Senior Laboratory Technician which was established on 1 May, 2019. The Worker has been placed second on this panel. The first placed candidate has not yet been offered a contract for a senior post. · The Employer currently has vacancies for Senior Laboratory Technician posts within the organisation.
The Worker is seeking a recommendation that she be appointed to the post of Senior Laboratory Technician with effect from 24 September, 2018. The Worker contends that the Employer failed to implement an agreement which would have resulted in her appointment to such a post prior to the expiry of the promotional panel on which she was next placed at the material time in question. The Employer contends that this panel had actually expired in July, 2018 rather than September, 2018 after a period of three years which is the maximum length for a panel as determined by the National Recruitment Service. The Employer does not dispute that approval for the filling of a senior post was received prior to the expiry of the panel but the Worker was not offered a contract for such a post as a result of a slowdown in recruitment.
The Employer has subsequently established a new promotional panel for the post of Senior Laboratory Technician and the Worker has been placed second on this panel. The Employer confirmed that there are currently vacancies for senior posts within the organisation and that management would be supportive of securing a senior post for both the Worker and the first placed person on this panel. Having regard to the fact that the initial panel expired after the normal period of three years had elapsed and that a subsequent panel has now been established, I take the view that it would be contrary to good industrial relations practice if I were to recommend concession of the Worker’s claim that she be appointed to a senior post with effect from the expiry of the initial panel in September, 2018. Any such recommendation would result in the first placed person on the current panel being passed over in order to facilitate the Worker’s promotion.
However, it is understandable that the Worker feels aggrieved in relation to the Employer’s failure to appoint her to a senior position prior to the expiry of the initial promotional panel in September, 2018. I am satisfied that the Worker had a reasonable and legitimate expectation, having regard to the agreement concluded between the Employer and her Trade Union in April, 2018, that she would be appointed to the senior post prior to the expiry of that panel. I am satisfied that the Employer failed to implement the terms of this agreement prior to the expiry of the panel with the result that the Worker was denied the opportunity of promotion to the senior post at that juncture.
In the circumstances, I recommend that the Employer should as a matter of urgency seek to obtain the required approvals and progress the filling of the existing vacant senior posts from the current promotional panel which was established on 1 May, 2019. I also find that the Worker is entitled to compensation of €5,000.00 for the distress she experienced as a result of the Respondent’s failure to implement the terms of the agreement in April, 2018.
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Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Employer should as a matter of urgency seek to obtain the required approvals and progress the filling of the existing vacant senior posts from the current promotional panel which was established on 1 May, 2019. I also find that the Worker is entitled to compensation of €5,000.00 for the distress she experienced as a result of the Respondent’s failure to implement the terms of the agreement in April, 2018. |
Dated: August 6th 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Industrial Relations Act 1969 – Section 13 – Promotion – Compensation awarded |