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-00021521-001

02/09/2018

The claimant has been employed in an acting capacity since August 2011 as a temporary grade V – she is paid on the Grade V scale   and receives the terms and conditions of a Grade V postholder.

The claimant was advised by her line manager in July 2018 that her position will be advertised and that she will have to compete for the post.The claimant is extremely aggrieved with the proposal to advertise the post and considers it most unfair that she would have to compete for a post which she has satisfactorily performed in for in excess of 7 years.The claimant was unable to have her position regularised under the respondent’s regularisation circular in 2013 as she did not meet the criteria in terms of length of service as an acting Grade V.The claimant was issued with a specific purpose contract in 2014 which has been renewed annually.The claimant received assurances from a representative of the respondent’s HR Dept. in January 2016 that she would be eligible for regularisation from August 2015 on the acquisition of in excess of 4 years in the post.

The HR Rep contacted the claimant in February 2016 to clarify that the information he had given her was incorrect.

It was submitted that there was no financial implications for the respondent in conceding this claim as the claimant was already in receipt of the Grade V rate of pay.It was submitted that the claimant had an excellent work record and was flexible and accommodating.IT was contended that the respondent was in breach of its own guidelines set out in circular 17/2013 which stated that “ temporary appointments beyond 12 months should only be on an exceptional basis as they would run counter to the concept of temporary appointments”.

The claimant invoked a number of WRC decisions as well as LCR 21771 in support of their position.

The respondent submitted that the claimant had not exhausted the respondent’s internal grievance procedure by raising the matter through the line management structure.The respondent’s representative accepted that he had wrongly advised the claimant that she would be regularised after 4 years service and had been unaware that this provision did not apply to promotional posts.It was contended that the WRC decisions and Labour Court recommendation being relied upon expressly specified that the findings were unique to the individual circumstances of said disputes and could not be used as a precedent.It was submitted that the respondent had no mechanism to regularise the claimant .

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.I note that notwithstanding the respondent’s assertion that the claimant had not exhausted the grievance procedure , the claimant’s representative submitted correspondence into evidence from the claimant’s line manager supporting the claimant’s permanent appointment – this clearly signalled to the claimant that there was no dispute about progressing the claimant’s permanency.

I find the claimant’s case compelling on the basis of the duration of her period of acting (in excess of 7 years), the absence of any justification or plausible explanation from the employer for allowing such a long term acting arrangement , the expectation created by the HR representative regarding regularistaion after 4 years and in light of the fact that if the claimant had been engaged on a fixed term contract , she would have acquired rights to a CID after 4 years.In light of these factors I am upholding the complaint and recommend in full and final settlement of this dispute that the claimant be appointed permanently to her Grade V post by designation with immediate effect.This recommendation is based on the unique features of this dispute and should not be invoked or relied upon at any other forum.