Worker

Employer

Anonymised Parties

An Administrator

A Third Level College

Representatives

C. McGrady BL instructed by Jill Griffin, Solicitor of  Farrell McElwee Solicitors

Patrick Watters,   Solicitor of Beauchamps

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-00034797-001

19/02/2020

The issues in contention concern an Administrator with a College of Technology. She alleges that she was removed in breach of contract from an Acting Grade VI position, was treated less favourably than colleagues in relation to promotional opportunities and alleges penalisation by her Employer in denying her promotional opportunities and as a result of bringing an earlier case to the WRC - ADJ-00022024.

The dispute is referred to the WRC as the final stage in the Employer Grievance procedure -all local stages having been exhausted.

It is important to note that much of the material/evidence in ADJ-00022024 and indeed the Recommendation itself have a direct bearing on this case.

The Worker commenced employment in February 1995 and was paid approximately €52,200 per annum at the date of referral of the dispute.

The Worker was first employed in 1995 and is currently a permanent Grade V Staff officer. Her dispute centred on her being removed from a Specific Purpose contract without due cause and a dispute of penalisation arising from this and her referral of a case to the WRC that led to ADJ - 00022024

By letter dated the 23rd of July 2018 the Worker was appointed/ confirmed on a Specified Purpose contract to a Grade VI position in International Administration/Development.  She had been in the position in 2015 and the exact date she physically took up the job, for a second time, was somewhat clouded.

The commencement date was confirmed as the 23rd May 2018 and the first anticipated End date was 21st December 2018, was extended until 11th June 2019 and eventually ended on the 9th November 2019.

In the letter of appointment of the 23rd July 2018 it was stated that

“This specified purpose contract is to backfill a post which is temporarily vacant due to the post holder covering a maternity leave contract. This contract will be offered to you until the post holder returns or alternatively if the post holder decides not to return, this post will be filled through public competition.”

It was alleged that neither of the two conditions took place and the Worker was removed in clear breach of the terms of the Letter of the 23rd July 2018.

In support of her penalisation argument the Worker pointed to a number of roughly similar cases in the College where colleagues had been treated much more favourably. A number of potential Grade VI positions have arisen, but the College has produced various spurious excuses, restructurings etc. to effectively deny the Worker even the opportunity to compete for these positions. This was effectively penalisation.

In addition, it was alleged strongly that the taking of proceedings leading to ADJ - 00022024 was instrumental in an egregious removal of the Worker from the Acting Grade VI position.

The Worker pursued her grievance, unsuccessfully, through three stages of the Local Grievance Procedure prior to coming to the WRC as Stage Four.

The Worker accepted that the International Administrator role has now been filled and realistically she has to accept that this role is no longer available to her. The Worker listed a number of options open to the College to establish a Grade VI position and to a number of positions that have been advertised as fixed term contracts as opposed to permanent contracts without any valid explanation.

The Worker seeks recognition by a Grade VI appointment and compensation for the distress that she has suffered.

In the case in hand the Worker has alleged that

(1)    She was improperly removed from a Specific Purpose Grade VI position

(2)    She was subject to penalisation in being denied promotions and as a result of taking an earlier WRC case to Adjudication - ADJ-00022024.

Ending of Specific Purpose Grade VI contract in International Relations.

By way of background the Employer pointed out that the College established a Panel in January 2018 for the filling of all part-time, full-time, permanent and contract grade posts at Grade VI level. This was the Education and Training Sector Candidate Pool. There were effectively three sub panels each catering for a specific type of vacancy. This Panel and the Rules by which it was to operate were agreed with the FORSA Trade Union. The Worker was placed No 1 on the Panel.

On the 23rd of July 2018 the Worker was formally confirmed in the Specific Purpose role in International Relations. The Worker had actually started in the role on the 23rd May 2018. The appointment was in keeping with the rules of the Panel.

In July of 2018 the Employer offered the Worker a two-year Temporary Fixed Term Grade VI position in Lifelong Learning. Correspondence was exchanged but the Worker chose to decline the offered position.

By Panel Rules the Worker lost her No 1 placement on the Fixed Term Panel as she had declined the offered position. In early 2019 the Post Holder of the Learner and Student Support Grade VI position requested and was granted carers leave to commence on the end of her maternity leave in July 2019. This was granted, and the Employer then moved to fill the arising vacancy. This was done by public competition. The Post holder of International Administration (for clarity not the Worker) applied and was successful. This gave rise to a vacancy in International Administration (at that stage occupied by the Worker on a Specified Contract basis). As the Worker had declined a vacancy in Lifelong Leaning, in July 2018, she had lost her first place on the panel and the vacancy was offered and accepted by an initially lower ranked candidate.

This appointment removed the rationale for the Specific Purpose contact, held by the Worker and she was returned to her Grade V position in November 2019.

The Employer maintained that all the moves, filling of vacancies etc. were all above board and in strict keeping with the Rules of the FORSA/College Panel. By declining the Lifelong Learning position the Worker lost her first place on the Panel with the inevitable consequences. In oral evidence the issue of the effective date of commencement was discussed. Irrespective if the Specific Purpose contract had preceded the Panel, which was denied, the operation of the filling/ending of the vacancy had to be governed by the rules of the Panel.

The Worker raised a grievance under internal procedures and has been through three internal stages. All have found against her.

The dispute has accordingly no merit.

Penalisation

The second element of the dispute -that of penalisation – was vigorously denied. The Worker did not suffer any penalisation either from her grievances or from her earlier complaint to the WRC.

The College acted at all times in keeping with the Panel Rules. All the job vacancies raised by the Worker in support of her dispute were either outside of the administrative area or had particular local issues of restructuring that made them unsuitable for the Panel process.

The local grievance process had looked at his dispute in detail and did not find that it had any real evidential basis. It had been rejected.

Employer Summary

The contract concerning the specific purpose vacancy had been clearly and properly observed.

To accede to the Worker’s request for an out of the ordinary Grade VI position or grading, at this stage, would be very disruptive from an industrial relations point of view with FORSA.

The life of the Panel expired naturally in summer 2020. The Employer did not agree with ADJ- 00022024 in giving a special red circled panel rights extension to the Worker as to have done so would have caused serious difficulties with FORSA.

There was also a clear issue involving Section 13(2) of the Industrial relations Act,1969 as to give the Worker here any exceptional treatment would have clear Body of Worker implications which would be outside the remit of this Adjudication Recommendation.

Penalisation as alleged did not arise.

General Discussion of the case. Links to ADJ-00022024

This Recommendation is made under the Industrial Relations Act, 1969 which allows an Adjudication Officer a certain liberty to express a non-statutory Recommendation as to what will constitute a fair and reasonable settlement of a case.

As stated in ADJ-00022024 the Worker, quite possibly suffered from the law of unintended consequences. By declining the first position offered in Lifelong Learning in July 2018 she lost her first place on the Panel as regards Specific Purpose Contracts.  The Panel had three sub elements, Permanent (where the Worker still retained her no 1 slot), Temporary & Specific Purpose and Part Time.

For a relatively small College, staff wise, it was, as the evidence pointed to, an overly complicated arrangement. This was particularly the case in a situation where small staff numbers made each opportunity for promotion a matter of great interest for all staff and by extension their Union. The situation was further complicated by staff members having “Post Holder” rights over particular positions. This gave rise to what could be called complicating “Legacy” issues when a particular position became vacant.

One of the authors of the Panel scenario, the then HR Manager, a Manager of well renowned IR skills but now most unfortunately and tragically deceased, in the context of ADJ -00022024 described the situation as akin to “herding mice at a crossroads”.

This context made the full utilisation of the internal College grievance procedures a critical procedural step particularly where full staff unionisation was evident. The issue was the subject of three, fully represented, levels of grievance procedures.

All found against the Worker on the two referred grounds of an alleged improper ending of the Specified Purpose contract and the claim of alleged penalisation.

Good practice and legal precedents indicate that an Adjudicator should be slow to overturn a proper internal Grievance and Investigation procedure such as was evident here.

The ending of the Specific Purpose contract in International Administration.

The Worker and her legal representative argued that the vacancy in International Administration had predated the creation of the Panel. As such the terms of her appointment letter had to take legal precedence. In discussions at the oral hearing it appeared that the College conceded the early appointment but maintained that the operation of the contract, and specifically its ending was coved by the Panel Rules. It was argued that to do otherwise would have caused industrial relations issues with staff generally.

In a confused situation the following appeared to be clear. The Worker in this dispute is not and never was the Post Holder in International Administration. The Post Holder (for ease Person A) had gone to cover the maternity leave in another Department (Student Services). The maternity element had finished as the person on maternity (Person B) had moved on to carers leave. Person A (Post Holder in International Admin) then filled the Person B vacancy on a Specific Purpose contract. This gave rise to a vacancy in International Admin where the Worker concerned here was on a Specific Purpose contract.

Technically the Employer is correct, the maternity cover had ended, and the Post Holder Person A would not be returning for at least the duration of the carer’s leave of Person B. The International Administration role was then filled “By public competition” off the Panel where the Worker in this case had lost her first place (by strict operation of the Panel rules) by dint of her refusal of a position in July 2018.

However, the question of whether or not the actual filling of the vacancy had initially predated the creation of the Panel was very unclear. The Worker had been in the post in 2015 and again in 2017. Obviously, the 2015 filling predates the Panel and it raises a serious question if the 2017 filling was actually done in keeping with Panel procedures. Clarity on the ending of the position was not helped by the fact that the Worker remained in the position for a number of months after the specified end date.

In their letter of the 7th January 2021 the Employer stated

“It is not argued that the Complainant should be precluded from relying on the terms of her former specified purpose contract of employment in pursuance of her dispute”

What was argued was that a concession of the Workers dispute (Appointment to a Grade VI position) would give rise to Industrial Relations Act,1969 Section 13(2) problems.

In submissions it was agreed that the Worker accepted that the International Administration position had now been filled and the current incumbent could not realistically be removed. The only option, if the Worker’s argument is accepted, would be an exceptional Grade VI Specific Purpose Contract or a Permanent Grade VI in some other part of the College. Other possibilities of a more imaginative HR nature were possible.

During the oral evidence of the former HR Manager in ADJ-00022024 he had intimated that he would see what was possible. Unfortunately, and personally tragically, this had not happened.

Nonetheless, ADJ-00022024 addressed this issue in the context of the then Panel by recommending that the Worker here be allowed maintain her “First place rights” by granting her a special extension of her Panel rights by an exceptional two years. In correspondence the Employer had stated, on the 7th January 2021, that they “were not able to give effect to this Recommendation” as it would “Be hamstrung by Union reactions”.

At this stage, having reflected carefully on all the written evidence and the oral presentations the evidence points to the fact that the Worker here has suffered distress from a considerable lack of Employer HR imagination, an inflexible view of the Panel rules and a refusal to give effect to ADJ-0022024.

A Compensation award for distress seems appropriate notwithstanding the outcomes of the three local Grievance hearings.

Penalisation / Lack of Promotion possibilities.

Having read all the paperwork and the submissions from the parties, clear evidence of penalisation, (i.e. unfair and negative Employer actions against the Worker because she made a claim under the Grievance procedures and latterly the WRC) was not really evident in such a manner to support the penalisation dispute.

Conclusions

In this context of the above discussion and under the guidance of the Industrial Relations Act,1969 the evidence pointed to the following conclusions

1.       The Worker should accept that her Specific Purpose contract in International Administration was not, on a strict technicality, improperly ended if the rules of the Panel were followed. However, the Worker was correct in her arguments that there was a major doubt if the vacancy was actually subject to the Panel.

2.       On a HR and IR basis she was treated with a complete lack of flexibility and an unnecessarily overly rigid interpretation of the Panel rules. A compensation award for distress caused is merited.

3.       The allegation of penalisation was not supported by any realistic evidence.

4.       Oral evidence did not support a case that a fear of Trade Union /other staff reactions precluded a more flexible Employer HR solution in regard to the International Relations position in late 2019 or the Employer response to ADJ-00022024.

5.       Although conscious of the provisions of Section 13 of the 1969 Industrial Relations Act regarding “body of worker claims” the root cause of this entire dispute should be looked at.  The not infrequent use of forms of internal employment contracts such as Specific Purpose Contracts is giving rise to almost byzantine temporary employment arrangements and legacy post holder problems. The College should engage with the Trade Union involved, FORSA, in regard to the mechanisms for internal promotions.

6.       The engagement should not in any way create future inflexibilities for the College as an employer but seek a balance for employees seeking a reasonably certain permanent career advancement pattern. If needs be the Advisory Service of the WRC could be asked to assist.

1.       The Worker was treated unnecessarily inflexibly and with a lack of proper HR imagination by the Employer. A once off compensation lump sum of €2,500 (approximately the annual Grade V to Grade VI differential) is recommended in the Workers’ favour.

2.       I recommend, as good industrial relations practice, that the negative response of the Employer to ADJ-00022024 as regards Grade VI positions until the Summer of 2022 needs to be revisited. The “First Place” of the Worker as regards Grade VI positions should be reinstated.

3.       The allegation of penalisation was not supported by any realistic evidence and I do not recommend in favour of the Worker’s claim.

4.       It is recommended that the root cause of this entire dispute should be looked at in collective discussions with Staff Trade Unions regarding future mechanisms for internal promotions. The current “Crow’s Nest” of Specified Contracts and Legacy Post Holder rights is a sure recipe for further industrial relations disputes.

The discussions should not in any way create future inflexibilities for the College as an employer but seek a balance for employees seeking a reasonably certain permanent career advancement pattern.

5.       It is recommended that the Advisory Service of the WRC be asked jointly by the Employer and FORSA to assist with this process.

Staff Promotions, Specific Purpose Contracts, Legacy Contract issues, Penalisation.