Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00021952-001

19/09/2018

The Worker holds a Grade V post with the Employer and commenced in an acting up Grade VI post as a temporary measure in August 2011. She has year on year worked in the role and is now seeking regularisation into the post.

The Employer said that the Worker did not meet the criteria to be regularised in June 2014 and there is no current mechanism available for it to make such a decision.

The Worker commenced in an acting up capacity in the role of Grade VI on 15 August 2011 when the post became vacant. Due to the moratorium on recruitment in the Public Service she was not paid for undertaking the higher-level post until 1 October 2013.

The Worker requested regularisation into the Grade VI post in January 2018 after 6 and a half years successfully working in that post, but the Employer is refusing to do so.

The Worker said that the Employer’s own documentation and HR Circulars are very clear, in relation to the same, stating that temporary appointment to higher posts should normally not exceed over twelve months. The Worker said that there has been ample time for the Employer to fill the post.

The Worker said that the Labour Court LCR21771 has already made a decision recommending the regularisation into a higher post, on a similar case with a similar set of facts.

The Worker has been issued with the latest in a series of short contracts where the reason given for the temporary filling of the post is cited as “pending permanent filling”.

The Employer said the Employee holds a permanent Grade V post and is currently filling a Grade VI post that had become vacant. It said that the Worker was approved for higher payment at Grade VI in March 2015, which was backdated to 1 October 2013.

The Employer said that the Worker did not seek to apply for regularisation under the terms of the appropriate HR Circular in 2013 following the public sector moratorium on recruitment in the public sector. However, it acknowledges that she did not meet the service requirement stipulated at that point in time.

The Employee applied for regularisation in January 2018 under Circular 17/2013 (Regularisation of Acting Posts) and/or Circular 14/2016 (Job Evaluation Scheme) which was referred to the Head of Service in HR. The application under Circular 17/2013 was refused on the basis that she did not have 2 years’ continuous service as of 31 December 2012, which was the required service at the time to be considered for regularisation.

The application under Circular 14/2016 was refused on the basis that the circular only allows for posts that have expanded with additional duties be upgraded where that can be demonstrated. The Grade VI post under consideration does not have that particularity.

The Employers said that there is currently no mechanism for regularisation into the post. There are some national level developments with regard to the filling of posts that are currently filled by similar arrangements across the Employer but there is no short to medium term solutions anticipated. The Employer said that in 2016 there was a review of all posts and this post was considered “low priority” and not progressed as a post as high priority for filling.

The Employer points to Circular 01/2018 which confirms that temporary posts must be filled through the normal recruitment and selection process in accordance with the Commission for Public Services Appointment Code of Practice.

The Employer said that should the Worker be successful in this claim that it would have repercussive effects on all staff categories with the organisation.

The Employer said the recommendation of the Labour Court in LCR21771 was specific to those set of facts, which are different to the case here and were not meant to set a precedent.

Both parties have presented very helpful submissions to outline their respective positions. The pertinent facts of the case are not in dispute here.

I note that the Employee has now been carrying out the duties of a Grade VI since August 2011. That is just short of 8 years working in an acting up capacity. Eight years equates to roughly 20 percent of a typical Worker’s career.

I note that the Employee has been told that she was not eligible for consideration for regularisation into the post, under the terms of Circular 17/2013. I note that she missed out for consideration by circa. 4 months.

I note the Employer’s point that there is currently no other formal mechanism to facilitate the Workers application for regularisation into the post.

I note that there are no panels in place to allow the Employer to fill the Grade VI post on a permanent basis. I have not heard any details of a definite date into the future where this will occur.

I understand that this is a matter of great frustration for the Worker. 

I have read and considered the WRC and Labour Court cases cited by both parties and note that both recommendations are individual to the fact pertaining to those respective cases and are not to be considered as binding.

I note the Employer’s own guidance document states that temporary appointments extending beyond 12 months in duration ‘should only be on an exceptional basis as they would run counter to the concept of temporary appointments’. I can fully concur with that statement.

I note that the typical working time span of an employee is circa 40 years. The Worker in this case has spent just short of eight years - 20% of her career - in this acting up temporary capacity and by all accounts she is more than capable of tending to her tasks and responsibilities. To suggest that her current role is a “temporary arrangement” after nearly eight years in the role is somewhat disingenuous to the Worker.

Taking the period of time that the Worker has satisfactorily filled the post, considering that she just missed out on the previous mechanism for consideration for regularisation by a matter of a few months, and since there is no immediate panels in place for which to fill the vacancy on a permanent basis, I recommend the following,

The Worker shall be entitled to regularisation into the current post at Grade VI at the end of her current contact, unless a permanent appointment via an open competition is made prior to that date.

The Worker’s case is well founded.

The Worker shall be entitled to regularisation into the current post at Grade VI at the end of her current contact, unless a permanent appointment via an open competition is made prior to that date.

I make this Recommendation on the specifics of this case, and for this case only, and it shall not set a precedent in any other dispute.

Industrial Relations Acts – regularisation into post – well founded.