LCR22289

1.An Appeal of an Adjudication Officer's Decision No(s)ADJ-00024799 CA-00031557-001.

BACKGROUND:

2.This case is an appeal of an Adjudication Officer’s Recommendation by the Employer.

The Adjudication Officer had found that the HSE had breached its own procedures by leaving the Worker ‘acting’ on the duties of a higher grade for a period beyond one year.
The Adjudication Officer’s Recommendation awarded the Worker €10,000 and also recommended that"in the unique circumstances pertaining in the dispute that the Claimant be appointed to a Grade VI position with effect from July 1 2017."

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 7 July 2020 in accordance with Section 13(9) of the Industrial Relations Act, 1969. Labour Court hearings in a virtual setting took place on 14 & 21 October 2020.

WORKER’S ARGUMENTS:

3. 1. The Worker claims that the Employer is in breach of its own guidelines and circulars with respect to temporary appointments.

2. The Worker is seeking to have the outcome of adjudication upheld so that he is formally appointed to a permanent position at Grade VI level with retrospection applying to July 2017 and that he is paid the recommended €10,000 compensation.

3. The Worker refers to Labour Court Recommendation LCR 21771 and claims it creates precedence for his case.


EMPLOYER'S ARGUMENTS:

4. 1. The Employer claims that the Recommendation of a back dated promotion and the award of €10,000 compensation is overly punitive.

2. The Employer seeks to set out distinguishing facts to reflect their contention that LCR 21771 does not constitute a relevant precedent.

3. The Employer is satisfied that the Worker was given two opportunities to compete for a permanent position.



DECISION:

The Court notes, yet again, considerable concern at the failure of the HSE to stick to its own rules regarding assignment to higher duties. It is little surprise that so much of the Court’s time is taken up with avoidable cases where workers have been left ‘acting’ on higher duties for inordinate lengths of time, in total breach of the HSE’s own rules.

What is unique about this case is that not alone was the Worker left in this situation for a period of years well in excess of the HSE’s rules, he remained in this situation for a prolonged period after a competition was held to fill the post concerned. He was, subsequently, deemed ‘suitable’ for promotion to the post and was placed second on the relevant panel. However, because he was not placed first on the relevant panel, he was reverted to the lower grade, notwithstanding lengthy, satisfactory service in the higher grade for a period considerably in excess of the HSE’s own rules.

In view of the unique circumstances of this case and as the Worker has been deemed suitable for promotion, the Court recommends that the promotion panel on which he was placed be used to fill the next Grade VI post in the area. If a suitable vacancy does not arise within 12 months of this Recommendation, the Court recommends that the Worker be promoted to Grade VI on that date and that the implementation of this Recommendation be regarded by all parties as full and final settlement of the Worker’s claim.

	Signed on behalf of the Labour Court
	Tom Geraghty
DC	______________________
12 November 2020	Deputy Chairman