Complainant

Respondent

Anonymised Parties

{An Acting Supervisor}

{A Public Sector Body}

Representatives

Dermot O'loughlin Alpha Employment Representation Services

N/A 

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-00031839-001

25/10/2019

The Complainant is employed with the Respondent since 23rd February 2002.

The Complainant was appointed to an “acting up” supervisory role in 2013. He raised a grievance in 2015 seeking to regularise his position as he was not receiving the appropriate payments for the role. An arbitration report declared the Complainant’s application failed the time-line criteria contained in Circular 17/2013 and declared he qualified for a temporary contract as supervisor.

No temporary contract was ever provided. He was almost 6 years in a temporary position and was never advised of any exceptional reasons as to why his temporary position was extended beyond 12 months.

He initiated the formal grievance procedure in November 2018, and he was informed the Respondent would not uphold his grievance for regularisation in April 2019. He was appointed long before the national agreement was concluded. Prior to the outcome of the final grievance in April 2019 the Complainant was arbitrarily returned to his former position. He has suffered significant financial loss and lost employment opportunities. He only received payments for the position in 2019.

He relies on ADJ-0016900 and LCR 21771.

Following the Complainant’s appeal for temporary appointment he was advised on 11th May 2016 that his appointment is effective from 1st October 2013 and will cease on 31st October 2016. In November 2016 a vacancy for a supervisor arose and the Complainant was appointed as acting supervisor.

On 28th November 2017 the Complainant’s grievance was heard regarding monies owed unpaid and why he was not offered another vacant post of supervisor in another base. A process was agreed with the unions regarding filling all supervisor posts by merit and from the current panel.

The Complainant’s stage 3 grievance was heard in April 2019 and he was assured monies owed would be paid but the grievance for regularisation was not upheld.

The Complainant’s grievance is a direct consequence of the Respondent’s adherence to collective agreements reached regarding the expiration of old recruitment panels and a new collectively agreed recruitment process to expedite the permanent filling of the supervisory posts.

This issue has been the subject of referrals to the Workplace Relations Commission and the Labour Court. The Respondent relies on ADJ-0008234 which was confirmed by the Labour Court in LCR 21783 that the Adjudication Officer confirmed “I am not in a position to undermine the rules governing the operation of recruitment panels within the Respondent’s remit and therefore unable to make a recommendation favourable to the Complainant..”.

I have carefully considered the submissions of the parties.

The Complainant raised a grievance in relation to the regularisation of his acting up role. He did not qualify for the timeline criteria set out in Circular 13/2017.The Arbitration Report declared that he qualified for a Temporary contract for the position. However, he was never provided with a temporary contract. He was nearly 6 years in this position. He was never advised of any exceptional reasons why his position was being extended beyond 12 months by the Respondent. The Complainant has suffered almost 6 years of financial loss and loss of employment prospects. He was removed from the acting up position on 31st March 2019.

The Respondent says they are complying with subsequent national agreements now and cannot regularise the Complainant’s position as acting Supervisor. However, there is no explanation for the length of time that elapsed while the Complainant was in the position without any contract. The Complainant has exemplary service. There are exceptional circumstances that apply in this case. In the specific circumstances of this dispute, and without creating any precedent, I recommend the Complainant’s position be regularised as Supervisor at the earliest opportunity.

In the specific circumstances of this dispute, and without creating any precedent, I recommend the Complainant’s position be regularised as Supervisor at the earliest opportunity.  

Acting up as Supervisor, regularisation of position, national agreements.