Complainant

Respondent

Anonymised Parties

Employee

Employer

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-00041565-001

16/12/2020

Following interviews in December 2019 the employee was placed fourth on a panel for appointment to Acting Senior Executive Officer (SEO).  In the period up to March 2020 the first three persons on the panel were appointed to acting positions that arose within the organisation.  A vacancy then arose in June 2020 and the employee had the expectation that he would be appointed to fill that vacancy.  This did not occur as a person in a supernumerary position was appointed.  The employee raised a formal grievance as to why he had not been appointed but, following a hearing, the employer did not uphold the grievance.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The employee was placed fourth on a list for appointment as acting SEO.

The first three persons on the list were duly appointed and therefore the employee had an expectation that he would be appointed to the next vacancy.

The employee was unaware of a supernumerary position existing until that person was appointed to the vacant SEO position.

The employee has been impacted negatively by this decision both financially and by the fact that his promotional opportunities may be affected by his failure to gain experience in the SEO role.

The supernumerary position arose from circumstances outside of the employer’s control whereby it was obliged to create a position at SEO level and make a specific appointment to that position.

The vacancy that arose in June 2020 was in the same section as that of the supernumerary position and a decision was made to suppress the supernumerary position by appointing the person who held it to the vacant SEO position.

As a result of that appointment there was no vacancy for a SEO and so there was no requirement for a temporary appointment.

There is no dispute between the parties as to the facts that form the background to this dispute.  The employee has been in the employment of the employer, a local authority, since 1982.  He has progressed through the promotional grades and his present substantive role is at Grade VII.

In 2019 the authority advertised for applications from suitably qualified persons to be placed on a panel for Acting SEO positions.  The employee applied and was successful, being placed fourth on the panel which was established in December 2019.  In early 2020 a number of vacancies arose which resulted in the first three members of the panel being duly appointed.  In June 2020 another vacancy arose.  The employee contacted the HR Department seeking clarification as to the filling of this vacancy and after an exchange of correspondence was informed that the vacancy would be filled by the appointment of a person who was holding a Grade VIII supernumerary position in the section in which the vacancy occurred.  Consequently, according to the HR Manager, no vacancy existed to be filled from the panel. 

The employee was surprised by this development and lodged a formal grievance through his union.  The grievance was heard by the HR Manager on 11 November 2020 and the findings issued on 24 November 2020.  The findings stated that the suppression of the supernumerary position meant that no vacancy existed in June 2020 and that there was no evidence to suggest that the employee was overlooked or treated unfairly, nor could it be seen that his reputation as an employee had been damaged.  There was an acceptance that the employee would have been unaware of the existence of the supernumerary position.

In the circumstances I accept that the employee is genuinely aggrieved at the situation outlined above.  It would appear that the supernumerary position was created in 2017 and came about through circumstances beyond the control of the employer.  The panel, however, was created in 2019 and there was no reference made to the existence of this supernumerary position and the effect it might have on vacancies arising.  Moreover, three appointments were made from the panel without reference to the suppression of this position.  It follows therefore that when the vacancy arose in June 2020 the employee could have reasonably expected to be offered the position.  The employee stated he heard about the filling of the vacancy from the person in the supernumerary position.

The employer, for their part, make the point that an employee can be transferred within their grade at any time and that the existing Grade VIII supernumerary was appointed to the SEO position and not offered it.   I also accept that the appointment of the supernumerary in 2017 was as a result of actions outside of the control of the employer.     

I note, however, that an Acting SEO vacancy is due to arise in the near future and that the employee has been advised of same.  The employee stated that he had been offered this role but that there appeared to be conditions attached to it such as that he would be unable to return to his existing substantive position if / when the acting role ceased.  The HR Manager stated that she was unaware of preconditions.   

It is obvious that there was a lack of communication within the senior management level of the authority as to the implications that the existence of a Grade VIII supernumerary could have on the operation of the panel set up in December 2019.  I recommend therefore that persons who are appointed to promotional panels be advised of circumstances that might affect the normal progression of such panels so as to avoid misapprehensions as to what would be likely to occur when a vacancy arises.

I further recommend that the offer of an Acting SEO position to the employee which has now arisen is made on the same basis as the offers made to the first three persons on the panel without any extra conditions attached. 

The employee has sought monetary compensation for what was termed loss of earnings.  Whilst I am unclear as to the reasons why the employer waited until the fourth occasion to exercise the ability to move to suppress the supernumerary position, nevertheless I must accept the point that if that suppression had taken place earlier the employee would not have benefitted from it.  Neither do I accept that the employee’s promotional opportunities have been negatively affected.  I therefore cannot recommend that a monetary compensation payment be made in this instance.   

Industrial Relations Act, 1969      Promotional Panel