FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : CORK COUNTY COUNCIL - AND - CATHERINE SHEEHAN DIVISION : Chairman: Mr Geraghty Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision no R-078749-FT-09 JOC
BACKGROUND:
2. The Worker referred her case to the Labour Court on the 18 October 2018. A Labour Court hearing took place on the 13 February 2019. The following is the Determination of the Court:-
DETERMINATION:
Background
This case has been delayed in progressing due to High Court proceedings and it was finally heard by an Adjudication Officer of the WRC in January 2018.
The Claimant was appointed as a permanent Clerical Officer by the respondent in 2000 and was promoted as a permanent Assistant Staff Officer in January 2003. In May 2004 the Claimant was assigned to the role of ‘acting’ Manager of the Regional Training Centre in Ballincollig for an initial period of three years. While in this role she was paid on the Grade VI pay scale. She continued to accrue incremental credit on her substantive Grade IV scale in this period. In April 2008, the Claimant was notified, upon returning from sick leave that she would not be returning to the role of ‘acting’ Manager and she was returned to her substantive grade.
The Claimant lodged a case under the Terms of Employment(Information) Acts 1994-2012 that her terms of employment had been changed unilaterally.
The Adjudication Officer of the WRC concluded that the Claimant was a permanent employee of the Respondent and that she had returned to her substantive position with the Respondent.
The Claimant appealed this decision.
Preliminary Issue
In completing the appeals form, the Claimant had not ticked the appropriate box to indicate that she intended to bring an appeal under this Act. However, she had included a hand-written note on the form referring to her wish to appeal under the Act. Having heard from both parties, the Court was satisfied that a valid appeal had been received.
In addition, the Respondent argued that the appeal was statute barred as the appeal was not received within 42 days of the decision of the Adjudication Officer, as provided for in s.44(2) of the Workplace Relations Act 2015. Upon examination of the facts, it was established that an appeal had been received on the 42ndday so that, while the administrative section had corresponded with the Claimant regarding some incomplete information in the appeal form leading to a re-submission of the form, it was clear that an appeal had been received in time and, having heard the parties, the Court was satisfied that there was a valid appeal.
Claimant’s arguments
1 The employer made unilateral changes to the Claimant’s terms of employment through non renewal of the Claimant’s contract in the higher grade.
2 No documentation regarding non renewal , as per the original letter of appointment, was provided.
3 The Claimant was not permitted to return to her position, which amounts to a breach of her terms of employment.
Respondent’s arguments
1 The Claimant is a permanent employee of the Respondent. At no time was her contract of employment changed
2 Assignment on an ‘acting’ basis is common practice throughout the local government sector. No permanent entitlements to remain in the higher position accrue and, in this case, the correspondence with the Claimant makes it clear that upon cessation of the ‘acting’ arrangement, the Claimant would return to her substantive grade. Indeed, in that period she continued to accrue incremental credit in her substantive grade.
3 The Claimant was aware at all times that the position was temporary in nature. It is clear from the letter of assignment that the position was temporary and that once it reached an end the Claimant would return to her substantive grade.
4 The Respondent has treated the Claimant fairly and in accordance with the terms under which she was assigned.
Determination
It is evident that the Claimant feels that she was treated unfairly by her re-assignment to her substantive grade at the end of an ‘acting’ period on higher duties. However, no argument of substance was offered as to why this grievance gave legitimate cause for a claim under the Terms of Employment (Information) Acts. The Court shares the view of the Adjudication Officer that, notwithstanding the Claimant’s sense of grievance, the circumstances that gave rise to the claim involve her as a permanent employee of the Respondent returning to her substantive position in the organisation and that no breach of the Act occurred.
The decision of the Adjudication Officer is upheld.
Signed on behalf of the Labour Court
Tom Geraghty
CC______________________
19 February 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.