ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018118
Parties:
| Complainant | Respondent |
Anonymised Parties | A Clerical Officer | A Local Authority |
Complaints:
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-00023349-001 | 20/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00023349-002 | 20/11/2018 |
Date of Adjudication Hearing: 06/06/2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
The complaint under the Employment Equality Act, 1998 (namely, Complaint Ref No. CA-00023349-002) was withdrawn by the Complainant at the Hearing on 6th June, 2019.
Background:
The Worker commenced employment with the Employer on 10 November, 2008 in the post of Part-Time Permanent Clerical Officer. The Worker’s contract of employment provided that her working week will be 17.5 hours based on a five-day liability from 1 pm to 4:30 pm each day. On 8 February, 2011, the Employer wrote to the Worker to slightly amend her working week from 1 pm to 4:30 pm to the earlier time of 12:30 pm to 4 pm. On 18 August, 2015, the Employer wrote to the Worker increasing her working hours (on a temporary basis) from 17.5 hours per week up to 37 hours per week, initially for a period of six months. This was extended on 9 March, 2016 for a further period until 31 August, 2016, with the Council writing to the Worker on 17 August, 2016 confirming that the temporary increase was coming to an end and from 1 September, 2016 she would revert to her substantive contractual working arrangement of 17.5 hours per week. On 13 October, 2016, the Employer wrote to the Worker again increasing her working hours on a temporary basis to 37 hours per week for a period of six months. The Worker subsequently wrote to the Employer on 18 September, 2017 following previous discussions in relation to full time hours and expressed her interest that she was “willing and available to work full-time hours” and was “keen to work full-time hours and have been advised that the [Employer] will be recruiting in the near future”. The Employer responded on 6 February, 2018 acknowledging receipt of the Worker’s letter and apologising for the delay in responding. In that letter the Employer stated: “To set the context, I advise that it was decided a number of years ago due to people availing of lunch time opening to tax their vehicles etc., to recruit two permanent part time clerical officers as opposed to one full time person. This was to ensure adequate cover as lunch time. The second of these (part time posts has been vacated and is currently being filled by an agency worker pending a proposed redeployment of staff which is due to happen in 2018. [The Local Authority] does not provide for any other option than full day (7.24 hours) or half day (3.42 hours) attendance patterns for directly employed staff”. The Worker’s trade union also made representations to the Employer on 8 November, 2018 referencing the Industrial Relations Act 1990 (Code of Practice on Access to Part-Time Working)(Declaration) Order 2006 (SI. No. 8/2006). The Worker is seeking a recommendation that the Employer be required to grant her full-time post and that she be compensated for any loss of earnings which arose following the rejection of her formal application for full time hours in September, 2017. |
Summary of Worker’s Case:
The Worker made the following arguments in support of her position in relation to this dispute: · The Worker has extensive service and experience and has been very flexible in working additional hours when required, yet the Employer has not reciprocated and have failed to adhere to the Code of Practice on Access to Part-Time Working. The Code of Practice is accepted by all Employers. · Recent CSO figures have shown that the rate of part-time workers who cannot find full time work has dropped from 36% in 2012 to 17% in 2017. · The Worker followed the advice of HR in remaining with the Employer despite other opportunities being available. On 25 September, 2014, the Worker applied for a similar post in another Local Authority and was informed that she would not be released by the Employer as it had an ongoing requirement for her services. · A recent internal “Expression of Interest” for a post involving outdoor service staff demonstrated that the Employer was more flexible in facilitating outdoor staff. · In correspondence dated February, 2018, the Employer’s reasoning as to why the Worker could not have her hours increased to full time hours did not materialise. Also, there have been numerous vacancies which have been filled by Agency and Temporary staff over the last number of years and the Worker made her request in September, 2017 as there was a requirement to recruit staff. · The Worker believes that she should be compensated for any loss of earnings which arose following the rejection of her formal application for full time hours in September, 2017. This belief is grounded on the basis that in 2014 the Worker was led to believe that she was “required” by the Employer, hence it refused to release her to another Local Authority. However, from working full time in 2014, her hours were then subsequently reduced. In addition, the reasons for not facilitating the Worker’s request for full time hours in September, 2017 have not come to pass. |
Summary of Employer’s Case:
The Employer made the following arguments in support of its position in relation to this dispute: · The Employer accepts that there is a part-time clerical officer post currently filled by an Agency Worker. However, it has no intention to replace this role (and the Worker’s role) with that of a full-time clerical officer. The two part-time positions were purposely created to provide adequate cover for the Employer in its operations and at specific times. Should the WRC determine that these two part-time posts be replaced by only one full-time post, this would create operational staffing and cover issues for the Employer in its operations. · The Worker completed and was appointed to a part-time post and is seeking to be regraded into a full-time clerical officer post without competition. The practice within the Employer and Local Authority Sector is that appointments can only be made through competition and staff cannot simply be appointed to posts. This point has been accepted by the Labour Court consistently and in the case of LCR21800 (which involved a local authority employee seeking to be appointed to a position outside of a competition) it was held that: “The Court has been given no basis to understand how, having regard to the fact that the process of the appointment of staff in the sector is governed by statute and collective agreements, it could intervene in this matter”. · To do as the Worker requests without a competition would deprive any person who aspires to a clerical officer post of the opportunity to compete in an open competition for such posts. The sector norm is to hold competitions to always attract the best candidates. Such a competition has been held in 2019 and has resulted in more than 250 applicants. Since the panel was created on 25 April, 2019, offers of permanent posts have been made to six persons. The Worker is placed eleven on the panel which will last for one or possibly two years. If the Adjudication Officer was to find in favour of the Worker, the ranking order on the panel would be breached and a number of persons higher on the panel would be deprived of a post, potentially resulting in further claims. · The Worker is a part-time clerical officer and to appoint her to a full-time clerical officer post would be wholly unfair and inappropriate as well as outside of the normal practices of the local authority and sector. The Employer employs other staff at lower and other grades who would certainly be interested in a full-time clerical officer post (as well as other persons from other local authorities and beyond) and the Employer does not accept that the Worker has any legitimate claim to be appointed to a full-time clerical officer post outside of a competitive process. The appointment would also force the Employer to suppress two part-time posts and replace them with a full-time post to facilitate the appointment, where the Employer had a legitimate requirement for those posts. |
Findings and Conclusions:
This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim by the Worker that she should be appointed to a full-time clerical officer position. I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.
The following key facts in relation to the dispute were not in dispute between the parties, namely: · The Worker commenced employment with the Employer on 10 November, 2008 in the post of Part-Time Permanent Clerical Officer. Her contract of employment provided that her working week would be 17.5 hours per week. · The Worker’s hours were increased by agreement from 17.5 hours to 37 hours per week on a temporary basis for a number of 6-month periods during the period from August, 2015 to March, 2017. · In September, 2017 the Worker informed the Employer of her interest in increasing her hours from part-time to full-time on a permanent basis. The Employer subsequently informed the Worker that it was not in a position to accede to this request on that basis that it would be inappropriate and wholly unfair as well as outside of the normal practices of the local authority and sector to appoint her to a full-time clerical officer post. · The Worker has continued to work additional hours (over and above her contractual hours of 17.5 hours per week) when such additional hours are available. · The Employer held a competition in 2019 for appointment to the position of permanent full-time clerical officer within the local authority. The Worker is placed number 11 on this panel and offers of permanent posts have been to six persons on this panel.
The Worker is seeking a recommendation that the Employer be required to grant her a permanent full-time clerical officer post and that she be compensated for any loss of earnings which arose following the rejection of her formal application for full-time hours in September, 2017.
The Worker contends that she has been more than flexible with her Employer over the years but has not been facilitated with a permanent full-time contract and that the Employer has failed to adhere to the Code of Practice on Access to Part-Time Working (S.I. No. 8/2006). The Worker contends that a number of part-time positions in the local authority have in recent years been filled by temporary or agency staff and that she made her formal request for full-time hours in September, 2017 when there was a requirement to recruit staff.
The Employer accepts that there is a part-time post currently filled by an Agency worker. However, the Employer has no intention to replace this role (and the Worker’s role) with that of a full-time clerical officer role. The Employer contends that the two part-time positions (one of which is the part-time post currently occupied by the Worker) were purposely created to provide adequate cover to the local authority in its operations and at specific times. The Employer contends that the Worker wishes to force it into supressing both part-time posts and replacing them with one full-time post and appointing her to that full-time post without a competition. The Employer contends that it is not in a position to appoint the Worker to a full-time position outside of a competitive process.
Having considered the positions of both parties, I am satisfied that the Employer has facilitated the Worker with additional hours (in excess of her normal contractual hours) when available in accordance with the operational requirements of the organisation. However, the Worker is currently employed on a part-time permanent contract and is seeking appointment to a full-time permanent position. It is clear that the process of appointment of staff to permanent full-time positions in the sector is governed by statute and collective agreement. I find that I have not been presented with any rationale which would justify concession of this claim or a recommendation that the Employer should appoint the Worker to a full-time permanent position outside of those constraints. Furthermore, I am also cognisant of the situation that there are other employees in the sector in a similar situation to the Worker and who would seek comparable favourable treatment in the event that I were to recommend concession of this claim.
I have also taken cognisance of the fact that the Employer has recently conducted a competitive process for the position of permanent full-time clerical officer in accordance with the normal practices of the sector and the Worker has been placed number eleven on this panel. I further note that the Employer has indicated that it is reasonably confident that the Worker will be offered a full-time post from this panel within the calendar year.
In the circumstances, I find that I cannot recommend concession of the Worker’s claim in this dispute. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I find that I cannot recommend concession of the Worker’s claim in this dispute. |
Dated: 20th September 2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Industrial Relations Act 1969 – Section 13 – Trade Dispute - Part-Time position – Local Authority - Appointment to full-time position |