Complainant

Respondent

Anonymised Parties

A Worker

Health Service Provider

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-00019418-001

25/05/2018

The claimant commenced employment with the respondent in 1991 as a Catering Assistant   and competed for an acting position of Chef Grade 2 in 2013 and took up the position in January 2014.The claimant is seeking to have her position regularised by being formally appointed to the position without competition.Currently the claimant is being issued with short term duration contracts which on a number of occasions led to her being paid her prepromotion rate of pay which have subsequently being resolved but are a source of grievance as there is lack of clarity around the accuracy of the retrospection.It was submitted that the claimant was a diligent and conscientious member of staff with an excellent work record. The respondent has indicated that acting posts are being looked at nationally but nothing concrete has emerged. It was submitted that there was an opening for a Grade 2 Chef at the location and given the claimant’s extended period of Acting , she should be appointed to the post by designation – compensation was also sought for the grievances arising from being paid the lower Catering Assistant rate of pay when contracts were delayed.

The respondent concurred with the career history set out by the union.It was submitted that the claimant is being paid at the top of the scale for Chef 2 in accordance with LCR determination 21104.It was acknowledged that the claimant was a valuable and valued employee.It was however contended that the respondent has no mechanism to regularise the claimant’s appointment – the claimant was not covered by the time frame set out in HR Circular 017/2013 and the job evaluation scheme does not apply to the claimant’s grade.It was submitted that the Code of Practise for appointments to positions within the respondent’s employment require an open and transparent process based on merit and that anything other than an open competitive process would undermine the statutory provisions governing appointment and recruitment.It was submitted that the only option available to the employer was to advertise the post – it was acknowledged however that this posed some degree of risk for the claimant.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties .I fully acknowledge the respondent’s difficulty with digressing from the standard open recruitment format – however, I find the union’s assertion that this process poses significant risks for the claimant and fails to recognise that she has accommodated the respondent by acting up for a period of almost 5 years to be persuasive.I note the criteria for the beneficiaries of the 2013 regularisation circular which provided for appointment by designation was 2 years continuous acting as at the 31st.December 2012.The respondent did not advance any cogent reason as to why the claimant should be treated less favourably than the cohort of staff covered by the 2013 regularisation circular. Additionally , while I acknowledge that the claimant does not have locus standi under the Protection of Employees (Fixed Term Work ) Act 2003 , if the claimant had been employed on a temporary basis , she would now have acquired rights to a CID.In all of these circumstances I am upholding the complaint and recommending that the claimant be appointed by designation to a Chef 2 position with immediate effect.This recommendation is unique to this dispute and should not be invoked or relied upon at any other forum.