Complainant

Respondent

Anonymised Parties

Employee

Employer

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-00025219-001

23/01/2019

The employee submitted documentation on which he referenced three items of dispute: a claim to be appointed to the position of MAMF Instructor; Bullying procedures; Regularisation of Acting arrangements. During the hearing the dispute was narrowed down to the claim to be appointed to the position of MAMF Instructor.

The employee is in the employment as an instructor since 2000,first by FAS and later by the Employer. His dispute is that he believes that an agreement entered into by him with a named manager in 2016 subsequently confirmed to a meeting of staff, many of whom were willing to give evidence of that staff meeting, was not honoured by the management. Under that agreement he maintains that he was to undertake a specific course in September 2016 and, once he was successfully half way through that course, he would be assigned as the MAMF Instructor. In the meantime, a fixed term contract person would be appointed for a year as the instructor. At the end of year one ,or half way through the course ,his family circumstances were such that he did not raise the issue with management. The fixed term instructor was engaged for a further year. In 2018 he was informed that the MAMF post was to be filled on a permanent basis by a competition. He objected and asked for the advertisement to be withdrawn, pointing out that there was no other course pencilled in for the Centre. The competition went ahead, and he applied but was unsuccessful. The fixed term instructor was made permanent. He now finds he has little work at the centre and spends a lot of time in the office with nothing to do. His claim is that the agreement of 2016 made with him and in front of other staff should be honoured. This is why he completed the additional two-year programme and now he is being told he must complete an apprenticeship. Documentation he received following the competition is not satisfactory. Appointment as an MAMF Instructor and compensation were sought in settlement of the dispute.

Management spoke of efforts to develop the Centre and as part of those efforts, to upskill staff . The discussion with the employee would be part of that upskilling. The MAMF post was approved initially as a fixed term post, then extended for a further year and later regularised as a permanent post following a competition. These were decisions taken by the funder. Two managers were named by the complainant as being part of the discussion with the employee and as having informed a staff meeting of the arrangement with the employee. One of the two managers present at the hearing could not recall a discussion where the employee was assured he would get the post once he had successfully completed half of the two-year programme, and neither could he recall a staff meeting where the same commitment was given to the employee. When the employee raised the issue in 2018, the named manager was asked if there was anything in writing to confirm what the employee claimed was said, he replied no there was nothing in writing. When the competition took place, the employee was a very good candidate, however his qualifications did not meet the requirements of the post. The employee needed to register for an apprentice course. He cannot be appointed as an MAMF Instructor without the required qualification. Regarding his workload, management are working through this with the employee, assigning project work and cover work when required. However, there is a difficulty assigning work with industry because companies want certain qualifications. Given his experience, he would not be required to complete a full-term apprenticeship course and similarly for post qualification experience.

Given that the manager at the hearing cannot recall the staff meeting which the employee says occurred in or around May 2016, and several employees turned up for the hearing prepared to confirm that the commitment to the employee taking up the MAMF position half way through his course was made at a staff meeting, it is more likely than not that the employee did firmly believe he had an understanding with the managers regarding his future. Why else would he have embarked on a two-year programme if, as it has transpired, it was of no benefit to him. It is regrettable that nothing was put in writing at the time by the managers regarding the value of completing the two-year course, given the employer was paying for it. Nonetheless, the employee could and should have followed up on his understanding anytime in the period of a year between the end of the first year of the education programme and the announcement of the advertisement at the end of year two. And he must take responsibility for his own failure to follow up on what he claims was a cast iron agreement.

The matter of his being qualified or not for the position of MAMF Instructor was discussed extensively at the hearing. The employee was called to interview on the basis that he was qualified. His interview form states ’’Has completed a 60 ECT add on Batchelor degree. This qualification does not meet the criteria.’’ The employee was adamant that he has a degree and knows nothing about an ‘add-on’. Given that the employee’s score at the interview would not have matched that of the successful candidate even if he was accepted as qualified, the whole situation regarding the benefit to the employee of undertaking the two-year course   in the first place and the benefit of his qualification from that course are best described as a mystery. The nett result is that he does not have a meaningful job and he has been told that he must complete an apprenticeship programme nearly twenty years after he started at the Centre and still without a clear-cut path to an Instructor post. There is no simple resolution to this dispute. However, to reject the claim without any further remedy is unlikely to break the current impasse and would be unfair to the employee in all of the circumstances.

Recognising that an employee who undertook a two year training programme at the behest of his employer for the purpose of qualifying him for a position for which he is now not considered qualified and he is in effect no further on and now finds he must complete another programme over an unspecified period, I recommend that the employer pay the employee €5000 compensation as part settlement of this dispute. Payment of the €5000 will be dependent on him agreeing a role and related training programme and the effects of agreeing the training programme with his manager/s within four weeks of the date of this recommendation, which forms the second part of the proposal to settle this dispute. It will be for management to make a proposal regarding the future to the employee within three weeks of the recommendation and to confirming the arrangement in writing to avoid any doubt regarding the arrangements into the future. Once the two parts of the recommendation are agreed, this dispute should be regarded as resolved.

Both parties should have regard to the time limits for appeals of this decision and comply with the terms without delay.

Claim for appointment/qualification/disputed agreement