Complainant

Respondent

Anonymised Parties

A Senior Staff Officer

A Third Level Educational Institution

Representatives

Cathy McGrady BL instructed Jill Griffin Solicitor of Farrell McElwee Solicitors

Sharon Delaney Solicitor of Beauchamps Solicitors

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-00028818-001

31/05/2019

The issue in contention concerns the filling of a promotional Grade VI position in the Institution.

The Complainant has been a long-standing employee of the Institution. She is currently graded at Grade V but has a temporary specified purpose Grade VI position. In January 2018 the Institute ran a Recruitment Competition to create a Panel for all part time, full time, permanent and contract Grade VI positions. The Complainant was placed at the No 1 position on the Panel.

In April 2018 the Complainant was offered a Permanent part time Grade VI position (2 days per week) in the Engineering Department. (It is important to note, for explanation, that this Part time position had a very high expectation of going full time as the then incumbent (Ms. A) was possibly nearing retirement.) The Complainant declined as it would have meant that she was relinquishing her rights to her substantive Grade V position and would have suffered a major loss of earnings. It was agreed that regardless of this decision the Complainant would still remain at No 1 place on the Panel.

The position was then offered to the person at No 2 (Ms. B) on the panel who also initially declined.

In alleged discussions the Institute then further offered No 2 (Ms. B) the position on a Job Share basis. She accepted the position on a Job Share basis. The offer was made under the terms of the Job Share Circular 25 of 2006. This arrangement was not offered to the Complainant. The Panel competition had never mentioned any issues of Job-Sharing vacancies and to introduce it at this stage was unfair particularly in the manner it was alleged to have been done with No2 Ms. B. The Complainant was unfairly excluded from this option. It should have been fully explained and explored with her. In particular the Circular 25/2006 “rights” of the Job Sharer in a future vacancy arising situation should have been spelt out clearly.

When the original Incumbent Ms. A eventually retired the terms of the circular 25/2006 gave precedence to Ms. B who then secured the full time Permanent Grade VI role despite the Complainant being placed ahead of her on the Permanent Grade VI panel.

The less than gentlemanly manoeuvrings of the Institute on this issue have been incredibly unfair to the Complainant. She was never offered the Part Time role on a Job-sharing basis and this effectively excluded her from the Permanent Grade VI in the Engineering Department which “everyone in the Institute” knew was going to become vacant.

It is a wrong that needs to be corrected.

The basic facts, as opposed to the assertions made, as set out in the Complainant’s case are agreed.

The Complainant was placed at position No1 on the Grade VI panel and still retains this position for the duration of the Panel. The issue of the April/May 2018 Part Time filling of the Engineering Department position is disputed. The position was offered in May 2018 to the Complainant on a Two day a week 40% basis with the expectation, not guarantee, of it going full time in August 2019. She declined this on the basis of the loss of earnings and the alleged loss of her “Right of return” to her main Grade V position.

Accordingly, the Institute than moved to Candidate No 2 (Ms. B) who accepted the position on a Job-Sharing basis -50% of the role. This was under the Terms of Circular 25/2006 -Job Sharing. This gave Ms.B rights, if she wished, to move into the position on a full time basis on the retirement of Ms.A. This had been her call in May 2018. She accepted the short-term losses. The retirement happened as expected.

The Institute noted that the Retirment of Ms. A could never have been taken as “a given” particularly in April /May of 2018. At this stage Ms. A had not made any formal or informal applications to retire.

Regarding the non-offering Job Share allegation it was made plain by the Complainant in April 2018, both in writing and verbally to Mr.X, the HR Manager, that she was not interested in any Part Time position. He had proceeded on this basis in April/May 2018.

At the date of the hearing Ms. B is in the permanent full time Grade VI in Engineering. It would have been most improper and completely against Circular 25/2006 & Union agreements by the Institute to have effectively overridden her rights to facilitate the Complainant.

The Complainant has at all times retained her No 1 position on the Grade VI panel and should a Grade VI position become available (during the duration of the Panel) would be automatically offered it. She been in a Specified Purpose Grade VI position for the duration of the period and has suffered no material disadvantage whatsoever.

The Grievance of the Complainant has been exhaustively examined at three stages in the Institute’s Grievance procedure. It has been thoroughly and carefully examined and deemed not sustainable.

It should be set aside here at the WRC as well.

Detailed Written submissions were made in this case and supported by considerable Oral evidence. On a purely technical basis the position of the Respondent Institution is correct. Circular 25/2006 must apply.

However, the circumstances that lead to Circular 25/2006 coming into play were hotly disputed. The Complainant vigorously contested that she had not been offered the position in Engineering on this basis in April/May of 2018. The Respondent HR Manger, Mr.X, pointed out the evidence that the Complainant had indicated clearly, in May 2018, that she did not wish to entertain any part time positions and his offer to Ms. B had to be seen in this light.

Both Mr X and the Complainant came across as very credible witnesses. Mr. X was a very experienced HR manger who basically described the situation in April 2018 as akin to “herding mice at a cross roads” between the various staff involved.

In full reflection it appeared to me that the Complainant, not being blessed with the gift of prophecy, made a bad call regarding the part time Engineering job. It must be noted that she had Union advice at the time. None the less she inadvertently allowed, without any malice, Ms. B to establish “rights” under Circular 25/2006 that superseded or trumped the Panel Position No 1 rights of the Complainant.

I would describe it as the application of the Law of Unintended Consequences to the Complainant. She maintained that Mr X should have been aware of this effect of Circular 25/2006 and advised her accordingly. After all she had over 24 years exemplary service to the Institution. Mr. X resolutely maintained that the Complainant had made it plain that she was not interested in any part time role. On this basis he had not gone back to her a second time.

On questioning by the Adjudicator, the Respondent indicated that they had explored possible HR avenues that might resolve the current situation for the Complainant but that they were hamstrung by possible Union /IR reactions by other staff to any special arrangements. Grade VI positions did not come up regularly and it could be some further time before one became available. All staff were watching this case with particular interest as promotion is always a very hot topic.

On balance, having reviewed all the evidence and conscious that the claim is under the flexibilities afforded by the Industrial Relations Act ,1969 I recommend as follows.

1.       A straight forward endorsement of Circular 25/2006 would only be a Pyrrhic victory for the Respondent.

2.       As an exceptional measure “red circled” I Recommend that the Complainant be deemed to retain her rights to the first permanent full time Grade VI position for a further two years i.e. for a period of two years after the expiry date in 2020 of the current panel.

In making this Recommendation I was aware of the following points

·         The long and exemplary 24-year service of the Complainant must not be overlooked.

·         She made a bad call in a disputed situation and this must be recognised on a Human/HR level.

·         However Circular 25/2006 does still apply and the rights of Ms. B, the present incumbent of the Engineering role, cannot be overlooked.

·         The Grade VI panel is due to expire in early 2020.

·         Hopefully during the extended period to 2022, a suitable vacancy may arise, or the Complainant’s current Specific Purpose Grade VI role may be extended.

·         However, this question of Specific Purpose contracts is a Respondent decision only and this Recommendation cannot be interpreted as giving any indications in this regard.

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-00028818-001

As an exceptional measure “red circled” I Recommend that the Complainant be deemed to retain her rights to the first permanent full time Grade VI position for a further two years i.e. until the current Panel expiration anniversary date in 2022.