Worker

Employer

Anonymised Parties

A Chef

A Health Service Provider

Representatives

Siptu

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-00026556-001

26/02/2019

The Worker is seeking to be formally appointed to the post of Chef Grade 1.   She has filled this position since January 2011 and while she is paid the salary for the post, she does not have formal recognition and her pension is being paid based on what the employer view as her core post of Chef Grade 2.  

She has attempted to have this addressed at local level, but this failed.   The Employer submits that the Worker did not meet the criteria to be regularised in December 2014 and there is no current mechanism available for it to make such a decision.   The worker is therefore seeking to have an Adjudicator Hearing of the matter as she needs this addressed in the short term for pension entitlements.

The Worker commenced in an acting up capacity in the role of Chef Grade 1 in January 2011.

The Worker requested regularisation into the post in December 2014, but her application failed. This was notified to her on 28th of January 2015.     The refusal was based on the application being viewed as a request for regularisation under the Haddington Road Agreement. The application was denied as the Worker did not meet the criteria to be regularised under Circular 17/2013 (Regularisation of Acting Posts) in December 2014 on the basis that she did not have 2 years’ continuous service as of 31 December 2012, which was the required service at the time to be considered for regularisation.  

The worker has been acting in the role since 17 January 2011 leaving a very small shortfall in the service requirement (17 days).

The claim was raised by the worker again in 2017 and 2018 but the matter was not resolved.

The worker is in receipt of the Chef Grade 1 salary so there would be no additional salary costs in the event of her being regularised into the post.

The worker is suffering an ongoing loss in her pension contributions as these continue to be based on her lower Grade 2 salary which will impact her entitlements at the point of retirement.   She has filled this post for 9 years and must now be acknowledged as the post holder with all associated benefits.

The Employer acknowledges that the worker has been acting in the role of Chef Grade 1 since 17th of January 2011.

Th employer states that the Worker did not meet the criteria to be regularised under Circular 17/2013 (Regularisation of Acting Posts) in December 2014 on the basis that she did not have 2 years’ continuous service as of 31 December 2012.

The worker did not appeal this decision under the provision for appeals available in 2015.

Due to the moratorium on recruitment in the Public Service the employer was unable to recruit permanently for the position and the request for approval was deferred until 2017.

Management have reviewed the status of the acting position in 2015, 2017 and 2019.

The employer recognises and values the performance of the worker but does not have the mechanism to facilitate the regularisation of the worker to the Chef Grade 1 position and in addition would be required to seek approval for permanent filling of the post which would then be subject to the governing code of practice.

Both parties have presented very helpful submissions to outline their respective positions. The pertinent facts of the case are not in dispute here.

I note that the Worker has now been carrying out the duties of a Chef Grade 1 since January 2011. That is 9 years working in an acting up capacity which equates to over 20 percent of a typical Worker’s career.

I note that the Worker has been unsuccessful in her application for regularisation into the post, under the terms of Circular 17/2013.  I note that she missed out on this on the basis that she did not have 2 years’ continuous service as of 31 December 2012 and that she missed out due to a shortfall in her service of seventeen days.

The employer advised the hearing that the worker did not appeal this decision under the appeals process established for aggrieved staff members who did not obtain regularisation under Circular 17/2013.   The closing date for such appeals was 21st of August 2015.   The worker stated that she had not been notified of this appeal process and that she did not apply as she was not aware of it and was not notified of it. The employer did not assert that the worker was personally notified of the appeal mechanism but stated that the unions would have been notified of the process at the time.  

I note the Employer’s contention that there is currently no other formal mechanism to facilitate the Workers application for regularisation into the post.

I note that there is no current proposal to fill the Chef Grade 1 post on a permanent basis.

I understand that this is a matter of great frustration for the Worker.

I have read and considered recent WRC and Labour Court cases in relation to similar matters in particular I note the Labour Court cases in in LCR 20862 and 21771 and the WRC findings in ADJ-00016900 and ADJ-00018561 and note that these recommendations are individual to the facts pertaining to those respective cases and are not to be considered as binding.

I note that the worker in this case has spent 9 years, over 20% of her career in this acting up temporary capacity and there is no dispute but that she capable of carrying out this role.   Any suggestion that her current role is “temporary” after 9 years in the role is somewhat disingenuous to the Worker.

Taking the period of time that the Worker has satisfactorily filled the post, considering that she just missed out on the previous mechanism for consideration for regularisation by a matter of days (seventeen to be exact) and since there is no immediate proposal or plan to fill the post on a permanent basis, I recommend the following,

The Worker shall be entitled to regularisation into the current post at Chef Grade 1.

On the final aspect, the date of implementation of regularisation, the worker in this case had sought retrospection to 2011. I note that the Labour Court in LCR 20862 and 21771 recommended dates of their own recommendation or the date of acceptance of the recommendation as dates for regularisation.    

Given that this dispute was lodged in February 2019, and the hearing held in October 2019 a short period of retrospection seems merited.

I recommend in favour of the Worker.    For the reasons set out the conclusions above, taking into account all the available information, I recommend that the position of the Worker as an Acting Chef Grade 1 be regularised with effect from 18th of November 2019.

I make this Recommendation on the specifics of this case, and for this case only, and it shall not set a precedent in any other dispute.