Employee

Employer

Anonymised Parties

General Operative

A County Council

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-00031933-001

31/10/2019

The Employee commenced employment with the Employer in April 2008 as a general operative. In 2011 he took on additional duties in an acting capacity and done this for six years. On return from a period of sick leave he was removed without explanation from the acting role and told to resume his substantive role.

The Employee alleges that he was “unceremoniously and without explanation” removed from an acting post which he held for six years. There was no opportunity afforded for him to be made permanent in that role and he was given no period of time to transition to his former role and lower rate of pay. It was submitted on behalf of the Employee that this was some form of punitive action which resulted in a loss of earnings and reputational damage. The Employee is seeking compensation for loss of earnings and the unfair treatment he received.

The Employer submits that the Employee is seeking compensation due to the ending of his acting period and for having to revert to his substantive role. The Employer rejects this claim as there is no precedence within the Council and Sector for compensation when a period of acting ends. The Employer submits that this claim has wider implications and, in that context, submitted a preliminary issue in relation to whether the Adjudicator was precluded from hearing this complaint and made reference to LRC22187 in that context. The Employer submits that this is a collective complaint and quoted from the case of ADJ-00008777 noted that “Section 13(2) of the Industrial Relations Act 1967 provides a statutory restriction on the types of cases Adjudicators may hear. They may not investigate disputes connected with rates of pay, hours or times of work or annual holidays of a body of workers … Although the matter before me is not directly connected with rates of pay, hours of work or annual holidays it is my view that claims which by their very nature and character have broader implications are inappropriate for adjudication. “

Notwithstanding the preliminary matter raised, the Employer is of the view that this is a case of the Employee simply seeking compensation for having to revert to his substantive grade following the completion of the acting requirement.   There is no policy, practice or precedent in relation to compensation payable in such circumstances.   The Employer provided a detailed breakdown of the number of acting posts in place since 2012 and the number of employees who reverted to their substantive posts. In addition to this the Employer outlined that the length of time varied from 1 to six for approximately 43 employees and over 5o employees acting between 7 and 14 years. The Employer confirms that when an employee reverts to their substantive grade there is no compensation or loss of earnings. To do so would be cost increasing and have a wider implication not just for this particular Council but also for the wider Civil and Public Service.

It is accepted that the Employee commenced employment in April 2008 and was appointed to a higher role on an acting basis from February 2011 to February 2017. He was sick for a period of two months and on the morning, he returned from sick leave he was told that his acting arrangement had ceased with immediate effect and that he was to revert to his substantive role. No rationale was provided at that time for the decision. The Employee’s grievance is that this was unfair and inconsistent with how the Employer dealt with similar situations which they regularly handled. On the basis that this grievance specifically related to this situation I accept that it specifically relates to the Employee and does not seek to put in place a loss of earnings claims for all similar situations. I note that there was a lack of transparency in relation to the acting arrangements with the Employers and it was confirmed that a policy to deal with such matters is close to completion.

I find that the manner in which the acting arrangement ceased was unsatisfactory and not in line with good HR practice. In that context I will recommend that the Employer pay the Employee the sum of €2,400.   For the avoidance of doubt this award is for the manner in which the acting arrangement ceased and for the effects of this on the Employee.

I recommend that the Employer pay the Employee the sum of €2,400 for the manner in which the acting arrangement was ceased and the effects of this action on the Employee. This compensation does not contain any element of remuneration. I also recommend that the Employer complete the Acting Policy and provides the Employee’s representative with a copy.

Acting arrangement.