ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00016856

Parties:

Complaint(s):

Date of Adjudication Hearing: 14/12/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969,following 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.

Background:

The Complainant is seeking redress for loss of earnings as she was successful in a competition for a temporary promotion, but she was not subsequently appointed to the vacancy which she maintained is now filled by an agency worker.

Summary of Complainant’s Case:

The Complainant has been employed as a Clerical Officer, Grade 3, from 1st of December 2002.

The Complainant submitted that the Respondent advertised for a temporary assignment opportunity for maternity leave cover at Grade 4 Assistant Staff Officer with a closing date of the 13th of March 2017. The Complainant applied for this opportunity, was interviewed, and was advised on the 30th of March 2017 that she was placed first on the panel.

On the 6th of April 2017 she received a letter from the Respondent that stated quote “I wish to formally advise you of your assignment to the above position (temporary assignment opportunity- maternity leave cover assistance staff officer/grade 4).” The Complainant was told to make contact with the designated line manager for the new post to agree a start date and that the maternity leave cover was due to end in September 2017 upon return of the member of staff availing of maternity leave.

The Complainant maintained that when she sought to move to the temporary position her move was not sanctioned by the Respondent and she was not permitted to take up the new position. She subsequently became aware in May 2017 that the role had been filled by an agency worker. The Complainant submitted that she had been advised that she could not move to the temporary position because her typing skills were essential in her current role and if she moved there was no backfill and where her move would have a catastrophic effect on the operation of the department that she was working in.

The Complainant further stated that the temporary Staff Officer role that she was to fill has remained filled by an agency worker. The Complainant was seeking a recommendation for this matter to be resolved.

Summary of Respondent’s Case:

The Respondent acknowledged that it advertised a position to cover the temporary vacancy for a Grade 4 staff member going on maternity leave. The Respondent advised that the maternity leave was due to start in January 2017 but initially no sanction was provided to fill the role but the sanction was eventually approved in February 2017. The job was then advertised, and the Respondent acknowledged the Complainant was placed first on the panel to fill vacancies due to maternity leave.

The Respondent acknowledged that a letter was issued to the Complainant on the 6th of April 2017 formally notifying her that she was successful and advising her to make contact with the designated manager for a starting date. The Respondent further acknowledged that they were not in a position to back fill the role of the Complainant and acknowledged in light of her typing skills her departure would have caused difficulties for the ongoing operation of her current role. Therefore, her move was not sanctioned.

The Respondent acknowledged that the role may have subsequently been filled by an agency worker, however it suggested that the agency worker had been redeployed within the organisation rather than being appointed specifically to fill the vacancy. The Respondent advised that the member of staff who was on maternity leave returned in September 2017 at the end of her maternity leave period but due to personal circumstances was redeployed to another area after a couple of weeks. It acknowledged that the role was filled subsequently by an agency worker.

The Respondent maintained that the competition the Complainant was successful in referred only to temporary cover for maternity leave and as the period of maternity leave ended in September 2017 the Complainant had no legitimacy to claim for further loss of earnings or for loss of opportunities post September 2017.

The Respondent acknowledged that the decision to refuse the Complainant a move from her department to temporarily fill the role was unfair to the Complainant but was borne out of necessity due to her typing skills that was required in her current role. It acknowledged the Complainant was a good member of staff and it expressed its empathy with the situation. However, it asserted that in light of the operational circumstances it had no option but to retain the Complainant in her current role during the maternity leave and that no other member of the panel was placed to fill that role.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Having considered the issues presented I am satisfied that the Complainant received a formal letter on the 6th April 2017 advising her that she was to make arrangements to move in order to fill the maternity leave cover on a temporary basis. The manager she was leaving was also the manager who had authority over the role to be filled.

I therefore find the Respondent on the one had offered the Complainant the vacancy having been placed first on the panel, but on the other hand having made such an offer did not facilitate her transfer. It relied on the fact that her typist skills were pre-requisite in her current role and that there was no back fill for that role so therefore it could not sanction the move.

I note that the Complainant was employed as a Clerical Officer not as a typist and therefore when she was found to be successful and placed number one on a panel to fill a vacancy at a higher grade the Respondent had an obligation to fulfil that job offer. In particular as the same manager was involved in both positions I find it was unfair that the Complainant was offered a letter advising her to make arrangements for the transfer where it was most probable that the Respondent was not in a position to facilitate that transfer in light of the challenge to find a back fill.

As the Complainant had clearly received a formal letter advising her of her success to be appointed to the temporary role I find that she was unfairly treated by the Respondent by not allowing her the opportunity to transfer. Not only would she have suffered a loss of earning as a consequence of the additional salary appropriate to a Grade 4 level, she also lost the opportunity for further job experience which would undoubtedly have assisted in her career advancement in due course

I therefore recommend that the Complainant be paid compensation of €1,500 for what she has experienced. I further recommend that as the Complainant was successfully placed number one on a panel for cover for maternity leave that the Respondent consider that the Complainant be facilitated with the opportunity to fill the next suitable temporary vacancy due to maternity cover which becomes available.

Dated:   24/07/19

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: Industrial Relations Act,Temporary Vacancy.