ADJ-00025602

Complainant

Respondent

Anonymised Parties

A Senior Manager

A Public Service entity

Representatives

Fórsa Trade Union

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00032471-001

26/11/2019

The complainant has acted in a number of higher-level positions above his own grade for a period of years. He seeks a permanent appointment at the level of the post he currently occupies.

Details were provided of the posts in which the complainant has acted since 2012; of which there have been five. In October 2013 a scheme was introduced by the respondent to regularise acting up posts and the complainant applied at the time to be included. However, he did not meet the eligibility criteria for service by some four months. In January 2019 he sought through his union to have his position regularised as he had been acting up for some six and half years. Acting up is intended to be a short-term measure only. The complainant has been ‘acting up’ for a total of eight years. The respondent does have a mechanism for dealing with situations like this through job evaluation but the scheme does not extend to the complainant’s grade. This was fully processed through the respondent’s grievance machinery but without success, as the respondent’s position was that it had no formal mechanism to deal with the request. The matter was then referred to the WRC and the complainant seeks to have his position confirmed as a permanent postholder at the grade he now acts in.

The respondent fully acknowledges the commitment and service of the complainant, but it does not have a mechanism to confirm him on the position he is acting in. His acting up assignments began in 2012 and his service was not covered by the 2013 regularisation agreement. There are currently discussions between the parties at national level and under the auspices of the Conciliation service of the WRC to agree a collective agreement in respect of its employees who are on a long term (over two years) assignment in a higher post. These discussions have been adjourned to allow the respondent to consider proposals from the trade unions which, if agreed would bring this complainant within the scope of a future arrangement to regularise his position. The respondent asks that the matter be left to the parties in the industrial relations process.

It is the longstanding position of both the Adjudication service of the WRC (since 2015) which followed the practice of the Rights Commissioner service before it, that it will not intrude where local or national industrial relations processes are still live or represent a more appropriate venue for the resolution of the particular dispute. This has also been confirmed by the Labour Court.

In this case, the issue referred clearly has wider implications than to the current complainant. Delay might be a consideration to be taken into account if an employer was being obstructive or frustrating the process. That is not the case here. The most recent engagement between the parties was on January 28th this year. (The complaint was referred to the WRC on November 26th, 2019 and to some extent has been overtaken by events.) But the parties have adjourned so that the respondent can consider proposals precisely to address the complainant’s position and the respondent indicated that it would be forthcoming soon. In the circumstances, that is the appropriate forum for a resolution of the complainant’s case.

For the reasons set out above I recommend that the dispute be further processed between the parties in the collective bargaining arena as that is the appropriate forum at this stage for the resolution of the matter.

Collective bargaining