Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

Jay Power SIPTU

 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-00043615-001

16/04/2021

The Worker began his employment with the Employer in 1981 and assumed the position of Acting Assistant Foreman in 2008. Notwithstanding the fact that there was a competition to fill a number of permanent Assistant Foreman roles, the Complainant believes that he should have been offered one of the permanent positions as he had been acting in the role for such a long period of time and was not able to participate in an internal confined competition in 2016 because he was on sick leave. He is also seeking compensation for losing his Acting role and having to resume his previous role of Chargehand Gardener from January 2021.

The Worker stated that he has been a loyal employee since he started with the Employer in 1981 and highlighted that he assumed the position of Acting Assistant Foreman in 2008.

Following a work accident in 2016, he was on certified sick leave and was not available to participate in an internal confined selection competition run by the authority to regularise the positions of workers who were acting up in their positions. His union representative contends that notwithstanding the fact that he was on sick leave, his position should have been regularised because he had been acting up in the role for a number of years.

In 2020, the authority ran a further competition to fill permanent Assistant Foreman roles. The Worker was encouraged to apply and believed that, based on his considerable experience, he would be successful although this was not the case.  His union representative further asserted that the Worker’s experience with the authority was not appropriately recognised because all of the applicants who were placed before him on the panel were under 45 years of age.

Although he was placed on the selection panel, other workers ahead of him have since been offered the permanent Assistant Foreman roles, which has resulted in the Worker in the within dispute both being displaced from his acting role since 1 January 2021 and having to resume his previous role of Chargehand Gardener.

The Employer stated that although the Worker was out on sick leave in 2016 when the internal confined selection competition was run, there was nothing preventing him from participating in this competition.

The Employer also disputed that, following the 2020 competition, the Worker was placed 12th on the panel and asserted that he was actually placed 10th.

The Employer further stated that this panel is still live and is not due to expire until 2 December 2021. The possibility that the life of this panel may be extended by another year was also highlighted.

The Employer asserted that as a result of the competition, and the permanent roles that had been created, there was no longer a requirement for the Worker in the within dispute to act up in the Assistant Foreman role. Accordingly, he resumed his previous position of Chargehand Gardener from 1 January 2021.

The Employer also stated that as there are no permanent Assistant Foreman roles available for the Complainant, any attempt to fill such a position for him would be cost increasing and therefore at odds with the most recent Building Momentum public services agreement. 

There are 2 separate aspects in relation to this dispute:

(i)                  Whether or not the Worker should be made permanent in the Assistant Foreman Role

The essence of the Worker’s case in relation to this aspect of the dispute is that because he has been acting up in the Assistant Foreman role since 2008, with the exception of 1 year when he was on sick leave, he should be granted permanency in the position.

While I find that the Worker should have been made aware of the internal competition in 2016 when he was on sick leave, to enable him apply for it, I do not accept that the failure to communicate this to him should result in him now being made permanent in the role.

I also find however that the Worker should recognise in the first instance that the Union of which he is a member has agreed with the Employer that a recruitment process is the most appropriate way by which permanent positions are filled in the Authority.

I further note that the Worker himself participated in the recruitment process for the permanent Assistant Foreman position and that it was only when he did not achieve a high enough place on the selection panel, which would have allowed him to start as a permanent Assistant Foreman, that he raised this dispute.

I also note that that the Worker was not unsuccessful in the recruitment process as he was placed on the panel and that it is not in dispute that the panel will remain live until December 2021.

The Employer also highlighted the possibility that the life of the panel may be extended by a further year after December 2021, given that other competitions are due to take place later in the year which could have a knock-on effect on the Assistant Foreman panel.

Given that the panel is therefore still live and that the Complainant has been named on it, I believe that the referral of this aspect of the dispute was premature and that he should wait until the panel has been exhausted before contemplating any further steps in relation to the matter.

(ii)                Whether compensation should be awarded arising from the Worker’s reversion to the Chargehand Gardener role

The competition for the permanent Assistant Foreman positions took place in June 2020 and the outcome of this resulted in those who placed highest on the panel assuming the roles, thereby relegating the Worker who was only acting up in the role to his previous position of Chargehand Gardener from January 2021.

While I note both the assertion that the Worker was told to apply for the permanent role and his assumption that he would be successful in attaining the position given that he had been acting up in the role for over 12 years, he must recognise, as highlighted above, that he participated in the interview process and that it had been agreed with his Union that such a process was an appropriate way to fill permanent positions.

Accordingly, he must accept the outcome of the interview process and his union will recognise that industrial relations chaos would arise in situations where workers choose to accept certain elements of agreements that have been made with employers and reject those that have negative consequences for them.

I cannot make a recommendation that is favourable to the Complainant in respect of either aspect of this complaint for the reasons outlined above.

Acting up role;