ADJ-00032880

Complainant

Respondent

Anonymised Parties

Local authority employee                        

Local Authority

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-00043440-001

07/04/2021

This dispute is concerned with the refusal of the employer to allow the employee take up a position of Acting Civil Defence Officer which it is claimed is contrary to his letter following a competition for a permanent post and an agreement reached with the Union some years ago.

The employee has applied for the position of CDO on more than one occasion. His most recent application was in March 2020 for the permanent post. Following the competition, he received a letter informing him that he was placed number two on the panel. That letter also stated: ‘Any vacancy, which may arise during the life of this Panel, will be offered to candidates in strict order of merit.’

In 2020 the postholder was assigned to work in the HSE to support the services during the pandemic. The employee sought a transfer to the vacancy but was told cover was not required. Later the post was filled by the Assistant CDO (there is some dispute as to whether this person was, or was not, a Council employee). He queried the situation with HR and he also wrote to HR asking them to reconsider and received a response in writing on March 26th, 2021 stating that the policy agreed with SIPTU in 1989 related to clerical admin posts only whereas the CDO Post is a specialist emergency services post. The Assistant Defence Officer has been appointed to deputise for the CDO in the vent of any absence. It seems he then had a discussion with the Director of Operations and there followed some interaction with HR and the LGMA. Forsa became involved and discussed the matter with HR-but essentially the position remained as first set out by HR. Forsa indicated their intention to refer the matter to the WRC.

Both parties made written and oral submissions to the hearing.

This is an individual case arising from a recruitment process. The letter issued to the employee clearly stated that: Any vacancy, which may arise during the life of this Panel, will be offered to candidates in strict order of merit.

There is an agreement in place in the Council regarding the filling of acting posts whether they are long term or short term. A vacancy of over three months (as this one was to be) is regarded as a long-term vacancy and as such the terms of the agreement should apply.

In rejecting the Councils argument regarding that the agreement applies only to clerical admin posts-Forsa contended that the terms apply to all grade posts at Grade V1 and the CDO position is analogous to a grade V1 and therefore the terms of the agreement apply.

References were made to a previous appointment to the post of CDO through a clerical administrative panel and another appointment between technical and admin posts.

The employee was very anxious to perform the duties even on an acting basis and although there was no financial gain for him in doing so. The employee lost the opportunity for experience in an acting position which could have assisted him in another competition for which he has also applied.

A significant financial remedy was sought to compensate the employee for the extent of the impact on the employee in terms of career progression and reputational damage. 

The employer made a preliminary case that the case should not be heard because the employee had not exhausted the internal grievance procedures before referring the matter to the WRC. Reference was made to previous decisions by an Adjudication Officer and the Labour Court as the basis of raising the preliminary issue.

On the substance of the dispute, the employer contended that the agreement referred to by the Union was agreed before the establishment of the CDO Post. It is a specialist post akin to the fire services and the job description of the Assistant CDO provides that the Assistant will deputise for the CDO to ensure continuity. This was part of the terms of the agreement between the Council and the HSE-that the Council would release the CDO in March 2021 provided they could cover the vacancy with the Assistant to ensure continuity and this is what occurred.

The competition in 2020 was for a permanent post and that is what should have been said to the panel-i.e. they would be offered any future permanent vacancies which arose while the panel was in place. This error will be rectified in future competitions.

The position regarding other appointments cited as precedents were disputed and debated at the hearing.

This is not a dispute about hours of work, rates of pay or annual leave of a body of workers. However, at the hearing I expressed some concern to the Union side that while the dispute concerns the application and interpretation of correspondence sent to the employee following a recruitment competition, the origins of the dispute lie in the disputed interpretation of a collective agreement previously agreed many years ago between IMPACT and the Council and its application to posts in the emergency service. In this regard I note the post of CDO was not in existence at the time of the conclusion of the agreement. Such a dispute properly belongs in the collective bargaining arena and not Section 13 of the Industrial Relations Act. Given the fact that the Union cited practices in other Councils-this may be an issue of significance beyond A Local Authority. It is not appropriate therefore that I would make a recommendation based on this individual case which could affect that collective agreement, either way. 

Appointment to vacancy from a panel