ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00021172

Parties:

	Complainant	Respondent
Anonymised Parties	A chef	A health service provider

Representatives

Forsa

Industrial relations officer

Complaint(s):

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-00027737-001	15/04/2019

Date of Adjudication Hearing: 05/11/2019

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 13 of the Industrial Relations Acts 1969 following 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.

Background:

The complainant, is graded as a Chef 1. He replaced an Executive Chef, who in turn was replacing a Catering Officer who went on career break and subsequently resigned. The complainant is seeking to have his position filled on a permanent basis as Executive Chef. The respondent’s position is that the post of Catering Officer is no longer required and at the end of their specific purpose contracts both the complainant and the member of staff whom he is replacing, will revert to their substantive posts.

Summary of Complainant’s Case:

In 2014 the Catering Officer with the respondent left on a career break. Following discussions with the management the permanent Executive Chef took on the duties of the Catering Officer and the complainant replaced her as Executive Chef. A short time later the complainant made enquiries with HR about consolidating the role but was informed, that while the substantive post holder (the Catering Officer on career break) would not be returning, the post would not be filled on a permanent basis.

In April 2017 the substantive post holder of the Catering Officer post did in fact return but left again after 6 weeks. The temporary return prompted the complainant to enquire again and he was informed that the post of Catering Officer did indeed exist. The complainant was offered a specific purpose contract in June 2017 at the grade of Executive Chef with an initial end date of June 2019. After negotiations an extended end date of September 2020 was agreed and a contract signed under protest. The issue was processed under the Grievance Procedure in September 2018 and appealed in Nov 2018 and again in March 2019, but without a positive outcome for the complainant. The complainant believes that he has been denied the chance of a promotional opportunity due to the mismanagement of the situation over a prolonged period.

Summary of Respondent’s Case:

The basic facts of the case are not in dispute. The particular location in which the complainant work is a residential service for people with an intellectual disability. The respondent took over the service in 2013 and has prioritised a programme of decongregation of people from the campus to community group homes in line with National Policy. A total of 152 people resided in congregated settings in 2016. However at this stage a total of 49 remain on the campus in which the complainant is employed. Those residents will have transitioned to the community by September 2020 which has implications for staffing. Household and Catering staff will be re-deployed to other services at their present grade. The position of Catering Officer will no longer exist as meal production will no longer be a requirement when all clients have moved to the community. It is legitimate that specified purpose contracts are issued to employees where a contract ends on the completion of certain tasks or a project.

Findings and Conclusions:

The claim is to have the complainant regularised in the post of Executive Chef. The initial vacancy arose due to the holder of the permanent post Catering Officer going on a career break, being replaced by the permanent Executive Chef, creating the temporary vacancy in which the complainant was placed. This explains objectively why the appointment of the complainant was on a temporary basis. While there was apparently confusion regarding whether or not the holder of the substantive post of Catering Officer had in fact retired the facts would appear to indicate that the reality of the situation was that he had not, as he subsequently returned to the post, albeit for a short while. By the time the complainant was offered a renewed contract the proposals regarding decongregation were being advanced and these were the new objective grounds for the filling of the post on a temporary basis ie. That within a relatively short period of time the substantive post holder would resume duties as an Executive Chef as the post of Catering Officer would no longer be required.

In large organisations the process of restructuring can be time consuming particularly where the service being provided is to be delivered in a significantly different way. On occasions a temporary appointment may have to be made as an interim measure. It would not make sense if, on such occasions, the temporary appointee was required to be appointed on a permanent basis. Accordingly, I do not believe the claim can be upheld.

Recommendation:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the claim is not upheld.

Dated: 15/01/20

Workplace Relations Commission Adjudication Officer: Shay Henry

Key Words:

Acting position when the substantive post holder retires and the post is to be discontinued.