Complainant

Respondent

Anonymised Parties

Foreman/ Acting Supervisor

County Council

Representatives

Aine Feeney SIPTU, Liam Maher

 Keith Irvine LGMA, Edel Martin

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-00042499-001

15/02/2021

The Employee has worked for the Council since 1991. He  currently is employed as a Foreman. He had held the post of Acting General Services Supervisor for over six years. He was unsuccessful in an application for a permanent post. He is seeking reinstatement to the position of Supervisor on a red circled basis, reimbursement of lost wages and increments also compensation for the distress caused and the conclusion of the grievance raised under company procedures.

The Employer has rejected this claim in its entirety.  

The Employee was promoted to Foreman in 2014. He then acted up as General Services Supervisor (GSS) when the official was on sick leave or annual leave. When the Gateway Workplace Programme commenced he was appointed Acting GSS. He understood that this programme ended in 2016 but he continued to be paid and to carryout these duties. In March 2019 without notice he was removed from that position and reverted to that of Foreman. He remains on emergency call duty roster with colleagues who are all GHSS grades. There was a confined competition for the position of GSS which he applied but was not successful. He had through his Shop Steward informed HR that he was nervous about the interview because he was dyslexic, and he sought guidance. He was placed last on the panel. He lodged a grievance in May 2020, but it was never investigated in accordance with the procedure. It is his position that he was not afforded access to due process and fair procedure and was subjected to unfair and unequal treatment.  On 4th April 2019 he communicated with HR about the interview and in particular the scoring he received. HR replied without any reference to the scoring and informed him that they were satisfied that the competition was executed in a fair and competent manner. No rationale was provided for this assertion. He was at this time unilaterally removed from his acting GSS rate of pay. His Union Official objected to this and stated that he continued to carry out the duties that gave him the higher rate of pay. He made a GDPR request for his file and nowhere was there any reference to his acting up role being solely for the Gateway programme.  E-mails on file show that the Employer was aware of the anomaly. He continues to carry out the all the duties associated with the GSS role and he currently has 17 employees reporting to him. He stated that by October 2020 he was no longer being considered for call outs. The Employer has consistently argued that the acting role was exclusively for the Gateway programme. This acting role was to be regularised, but the Employer maintains that no such record exists of that. The scheme was to formally end around February 2016.Other staff returned to their substantive roles at the end of that project. Following his unsuccessful application for the GSS role he felt that his dyslexia had been viewed in a discriminatory way. He raised an issue through the Grievance Procedure in May and June 2020. The Employer informed him that the grade issue would be dealt with by his Line Manager and the interview treatment would be dealt with by HR. No meeting took place. HR did write to him on 17th June 2020 enclosing notes of the panel, but no evidence of scoring was included. There was a passing reference to the dyslexia issue seeking elaboration on this, but it had already been highlighted in the complaint. On 26th June the District Engineer wrote to the Employee in relation to their reliance upon the Workplace Plan but made no reference to his 6-years’ experience at that level. The matter was then referred to the Workplace Relations Commission.

It is his position that there is a clear breach of fair procedure and natural justice. SI 146/2000 was not complied with. He relied upon the following cases ADJ 13782, how complaints were dealt with; 18898 breach of procedures; 27998, denial of natural justice; Murphy v Commissioner of An Garda Siochana [2021] No 40 JR on procedural fairness, Matthews v Department of Health ADJ 25554 on failure to be short listed DEC E2016-027 on seniority. He is seeking that he is reinstated to his role as GSS, that he be reimbursed for loss of earnings for the period April 2019 to date and pension contributions, reinstatement of increments, call-out duties allowances and an investigation into the grievances raised and compensation for the distress caused to him.

The Employee was promoted to the post of Foreman in December 2014.He was appointed Acting General Services Supervisor (AGSS) in April 2014 in respect of the National Gateway Working Programme. The Programme finished in 2017 however he continued in his Acting role until 2019 and he reverted to his substantive role in April 2019. In January 2019 a confined competition was held for a permanent General Services Supervisor. He applied and was placed on the panel, the highest placed candidate took up the role. He then sought to have his acting role reinstated and he was advised that this was not possible and the need for an acting role had ceased. He also raised two grievances regarding the removal of the acting role and discrimination in connection with the application for a permanent post on grounds of disability (dyslexia). The Council replied on 8th and 17th June 2020 and no further mention was made until he submitted his claim to the Workplace Relations Commission (WRC) on 15th February 2021.

It is the Employer’s position that his acting role ended in 2019 and he reverted to his substantive role. There is a clear understanding within the sector that acting roles are temporary and staff return to their substantive roles. They cited ADJ 8655, Labour Court decisions LCR 20634, 21800, 20634 and 21801 in support of their position. They see the current case no different than this one. The Employer rejects the claim that he suffered a loss of earnings. He was paid correctly for the duration of the acting role. To accept a loss of earnings claim in reverting to a substantive role would set an unacceptable precedent. They cited Labour Court decision LCR 22087 in support of that point. There is no basis for these claims and they are rejected.

I have considered the written and oral submissions of the parties to this dispute.

1) Reinstatement to the Acting role

I find that the Employee was appointed to an acting GSS role which ended in 2019 and he reverted to his substantive role.

I find that this is a common practice in this sector.

I find that this arrangement is well established and well known.

I find that the Employer has not adequately explained why the acting role did not end when the Programme ended in 2017. However, I find that the Employee enjoyed the benefit of this acting role until 2019.

I find no basis for this acting role to continue

I find that the Employee has no claim to a permanent role of GSS.

I find that I must reject that aspect of the claim.

2) Loss of earnings and increments

I find that that the Employee was correctly paid when he carried out the duties of Acting GSS.

I find that the Employer was well within its rights to terminate this temporary arrangement.

I find no basis for a claim for compensation for loss of earnings.

I find that I must reject this aspect of the claim.

3) Claim for discrimination on grounds of disability.

I find that this claim has been made under the Industrial Relations Act not the Employment Equality Act.

I note that the Employee stated that he made representations through his Shop Steward who spoke with the Liaison Member of the of the selection panel.

I note that this person did not draw attention to the panel of this because there is a place on the application to do so.

I find that the Employee did not make reference to his dyslexia on his application form.

I find that the responsibility rests with the applicant to make this case on the application form, which in this case he did not.

I find that the Liaison person should have drawn this to the panel’s attention, despite is not being done properly, through the application form.

 I found that no information was presented to support a claim for discrimination.  

I find that I must reject that aspect of the claim.

4) Grievances not investigated

I note that the Employee raised grievances.

I note that the Employer replied on 8th and 17th June 2020 and no further comment was made until it appeared on the claim form to the WRC.

I find that the Employee did not pursue and exhaust this grievance before referring it to the WRC.

So, I must reject this claim.

5) Compensation for distress caused

I find that this claim is unsubstantiated. He does not have a right to a permanent GSS role and there is no basis for this claim.  

For the above stated reasons, I recommend that these claims are not well founded and so they should fail.

Retention of acting up role and compensation for loss of earnings;