Complainant

Respondent

Anonymised Parties

A Lecturer

A Third Level Institution

Representatives

Teachers Union of Ireland

IBEC

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-00017804-001

07/03/2018

The complainant joined the institution in 2000 as a permanent assistant lecturer. In October 2011, he successfully applied for the post of acting assistant head of school (senior lecturer 2). This was to fill a role vacated by the permanent assistant head who was seconded to another position. For convenience in this document, I will refer to this person as “Dr X.” In 2011, the school where this post was located was in the process of being restructured, and it was anticipated that the role may not exist in the future. On September 27th 2011, the HR operations manager wrote to the complainant to confirm his appointment. Outlining the purpose of the acting position, she wrote,

“This post is offered on a specified purpose contract basis covering for Dr X who has been appointed to another post in the Institute. This appointment will cease when Dr X returns to his substantive post.”

It is apparent from the subsequent correspondence that the complainant has some concerns about the tenure of his appointment as he received further clarification from the HR department in three separate mails between October and December 2011. On October 21st 2011, the HR manager wrote:

“This post is offered on a specified purpose basis until the implementation of the new school structure in the College of Y.   The post exists to provide cover for X who has been appointed on a temporary basis to another post in the Institute. This appointment will therefore cease when the new school structure is implemented or when X returns to or leaves his substantive post, whichever happens soonest.”

In response to an e mail from the complainant on November 4th 2011, the HR operations manager wrote to the complainant again on November 22nd:

“I wish to advise you that as stated in the advertisement of the above position, the duration of the post will be until the completion of the school review in the College of Y or until the original post-holder returns to their substantive post, whichever date is the earlier.”

The complainant wrote again to the HR manager on November 28th, and she responded on December 20th as follows:

“I appreciate that you are seeking confirmation as to the status of this appointment. Let me explain in very clear terms. As a permanent member of staff you have been appointed to a vacant position in an acting capacity while the permanent post-holder is assigned to another temporary position within the Institute.   Therefore, you will continue to fill this position on an acting basis until the post-holder returns to this position or until the post is no longer required to be filled on an acting basis.”

In 2013, the review of the school referred to above was completed and three roles ceased to exist; the role of assistant head of school (being filled on an acting basis by the complainant), the head of school and the department head. The head of the school returned to his teaching duties and the department head retired. The complainant moved to a role as assistant head of the new school and the person he was back-filling for continued to work on his specific assignment.

In 2017, Dr X, the substantive post-holder, was appointed to a permanent position and it was confirmed that he would not be returning to his former job. In September 2017, the human resources department wrote to the complainant to inform him that his acting position would cease and that he would return to his post as a wholetime lecturer with effect from November 1st 2017. The vacancy for the post of assistant head of school was advertised. The complainant applied for the role, but he was not successful.

In November 2017, with the support of the TUI, the complainant initiated the grievance process.   After four meetings, a resolution could not be found, and the matter was referred to the WRC.

Having been appointed on a specified purpose contract in 2011, the complainant argues that his “acting” status ended when the review of the school where he worked was completed.   In 2013, he “assumed” a new role as assistant head of the newly-established school. This job was not advertised and he was not interviewed, but he carried it out until 2017 “without blemish or question,” according to his union representative. It is the union’s case that once the new school came into existence in 2013, and the job that he was back-filling no longer existed, he moved into a new role.   They do not accept that, because Dr X has been appointed to a new permanent position, the complainant should return to his post as a lecturer.

From the time that he took on the role of acting assistant head of the school, the complainant has been carrying out new duties, supervising staff and reporting to a new head of school; in fact, according to his union, he was doing a new job.

The union said that the management had indicated that the post would be advertised for open competition, but this didn’t happen and the complainant continued to occupy the position until 2017, when the permanent post-holder was appointed to a new position.   In November 2017, when he was informed that he was to return to lecturing, the effect was that he was going back to a job teaching on an apprenticeship programme, a role he had not held since 2005. Since taking up the acting role, he has completed a Master’s Degree and a PhD, making him suitably qualified for the job he has held since 2011.

The school where the complainant (and the permanent assistant head of school) worked became defunct in 2013. The union argues that this was the end point of the complainant’s acting up role on the basis of his fixed-term contract.   He then took up a new position, which, he accepts was not advertised and for which he was not interviewed. However, he has been in the position for six years without any evidence of reproach and his case is that he entitled to continue in that job.

It is the respondent’s case that there is no legal argument to support the proposal that a permanent member of staff appointed to a promotional post on a temporary basis should have automatic entitlement to a permanent position without having to compete for the role. They argue that all permanent vacancies must be advertised in accordance with departmental policy. There is no circular, policy or any other basis in the complainant’s terms and conditions that permit him to remain in the post after the expiry of the specified purpose or for any type of “direct appointment” to the role.

The respondent’s case is that the complainant had an opportunity to take up a promotional position from 2011 until 2017 and that the temporary nature of the acting post was clarified to him in correspondence from September to December 2011. There was no challenge to this clarification. In 2013, when the restructuring of the school was finalised, the complainant didn’t raise any query about his role. The institution made no attempt to cease the acting position until the permanent position became vacant on November 1st 2017.

When the substantive post-holder was seconded to a permanent post on that date, the effect was that his substantive post could be advertised on a permanent basis, in accordance with the institution’s recruitment policy. All eligible staff and external candidates could apply.

Concluding the position of the respondent on this matter, Mr Whelan said that they cannot accept that the circumstances that occurred provide legitimate grounds for the complainant remaining in the role, as this would amount to a direct appointment and a potential undermining of the outcome of a legitimate openly-advertised competition.

I have considered the arguments made in the written submissions on this grievance, and I have also taken account of what was said by both sides at the hearing. This is a problem created by the failure, in 2013, to address the effect on the complainant’s temporary role of the creation of the new school, the abolition of the post he was back-filling and the on-going secondment of Dr X to a specific assignment. When his old job was abolished, Dr X remained a substantive post-holder. A job was ear-marked for him in the newly-created school and the complainant occupied that job from the date of establishment.

By November 2017, when Dr X was appointed to his specific assignment on a permanent basis, the complainant had been “acting” in the role of assistant head of school for six years. There is no evidence that there were any concerns about his performance and there is no record of a disciplinary problem. On the downside, it appears that relations between him and the head of the school are strained.

It seems to me that, whatever understanding the complainant had about the status of his acting role, when he applied for the advertised position in October 2017, he was acknowledging that the job wasn’t his. He must have expected that, having occupied the role for six years, he had a better than even chance of being successful. When this didn’t happen, a grievance emerged.

This grievance has been the subject of four meetings at which the complainant, his union representatives and senior managers at the institution have tried to reach a resolution.   That resolution requires one or both sides to change their positions or propose something new and that has not happened. It now falls to me to recommend how the matter should be resolved, but the effect is the same; one or both sides must take some pain.

I have considered the correspondence from the HR department in 2011, and at this point, I see no merit in an analysis of what was intended and, whether the complainant’s acting post was to end on the completion of the restructuring of the school or the return of Dr X to his substantive post, or until the post was no longer required to be filled on an acting basis. The fact remains that the complainant moved to a new role in the new school, albeit that it was Dr X’s role.

Aside from the legal argument put forward by the respondent, it seems to me that there is an innate lack of fairness in a situation where an employee takes on a role on a temporary basis, and, having carried out the job satisfactorily for six years, is then found to be unsuitable. If he was not suitable at the end of six years, the problem must have been evident at some point before that, and it was incumbent on the management to point that out and to tell him what he needed to do to address any perceived deficits. This grievance has been submitted under the Industrial Relations Act and my recommendation must balance the requirement for the fair treatment of one individual with the possible impact on the collective and I am not naïve to the near-impossibility of achieving this. That said, I have reached a conclusion on the recommendation I should make for the following reasons:

In 2011, the complainant was interviewed for the job of acting assistant head of the school and was appointed to the position. No evidence was presented that, in the following six years, he became not suitable for the job.

I note the union’s reference to the fact that, if the complainant had been a temporary employee on a fixed-term contract, he would have been entitled to be appointed to the job on a contract of indefinite duration. While the Fixed-term Work Act is not relevant to this grievance, it seems to me that the law has recognised the rights of employees who have held temporary posts over a reasonable duration to be appointed to a permanent position.

The recruitment process is not a science and, apart from the requirements of equality legislation, it is not over-burdened by law. At the hearing, I was informed about an appointment that was made without an open competition and, it is my view that it is not beyond the capacity of the institution to appoint the complainant to the role he held for six years, without having to apply.

I recommend that the complainant should be appointed to the position as assistant head of the school, a role he has occupied on an acting basis since 2011.   Alternatively, I recommend that he is appointed to the next suitable vacancy at the same grade level as the position of assistant head of a school, with responsibilities that are suitable to his experience and qualifications. I further recommend that his salary is restored to the level of assistant head of school with effect from November 1st 2017.