Worker

Employer

Anonymised Parties

A Clerical Officer

A Local Authority

Representatives

Ms. Lisa Connell, Assistant General Secretary, Forsa Trade Union

Mr. Keith Irvine, Local Government Management Agency

Act

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

11/11/2020

The Worker was employed by the Employer as a Temporary Clerical Officer on a specific purpose contract from 28 September, 2015 until 29 December, 2020 when her employment was terminated.

The Worker invoked a grievance under the Employer’s established internal grievance procedures in relation to a dispute concerning her employment status towards the latter end of her period of employment. The Worker contends that she was not afforded fair procedures in relation to the manner in which the grievance procedure in relation to this matter was conducted by the Employer.

The Employer disputes the claim and contends that the Worker’s grievance was conducted in accordance with its established internal grievance procedures in a manner that fully complied with fair procedures.

The Worker has sought to have these matters investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

The Worker submits that she was appointed by the Employer to the position of temporary Clerical Officer (Grade III) on 28 September, 2015 after she had applied through a national competition which was advertised by the Public Appointment Services in late 2014/early 2015. The Worker submits that she was issued with a specific purpose contract by the Employer on the commencement of her employment. However, she contends that at no point in the application process was she informed that she would be employed pursuant to a specific purpose contract.

The Worker submits that she had been employed in this position for over five years in September, 2020, and therefore, made representations to the Employer to establish if her contract could be converted from a specific purpose contract to a permanent contract. The Worker contends that if she had been provided with a temporary contract/fixed term contract when she commenced her role with the Employer that she would have been eligible for a Contract of Indefinite Duration (CID) with effect from September 2019 by application of the provisions of section 9 of the Protection of Employees (Fixed-Term Work) Act 2003.

The Worker submits that the Employer informed her on 20 October, 2020 that she was not entitled to a CID on the basis that she had been covering the post of a person who was initially on maternity leave and her subsequent absence on a career break. The Worker queried this matter further with the Employer on 22 October, 2020 and requested to be moved onto a CID if the staff member had indicated that she would not be returning or alternatively that she would be moved onto a fixed term contract if the staff member was returning to her post. The Worker was informed by the Employer on 27 October, 2020 that the employee whose post she had been covering had decided not to return to work, and therefore, the Worker’s employment would be terminated on 29 December, 2020. The Worker was also informed that the position she was covering would be filled through the Grade III permanent panel which held a number of external applicants.

The Worker made further representations to the Employer on 30 October, 2020 that she should be placed into a permanent role to fill this vacancy which would be in keeping with the spirit of the 2003 Act and that it would be unfair to cease her employment and to fill the role she had been undertaking for five years with an outside person who had never worked for the Employer.

The Worker submits that she invoked a formal grievance under the Employer’s internal procedures on 11 November, 2020 after she had been provided with a date to terminate her employment despite her requesting the provisions of the 2003 Act to apply to her. The Worker also outlined as part of her grievance that she had not applied for a SPC, that there had been no reference to an SPC when she applied for the job and if she had been placed in a fixed term contract at the time she would have been regularised into a permanent contract at that juncture.

The Worker submits that she received a response to the grievance on 26 November, 2020 from the HR Manager who indicated that a full examination of the relevant issues had been undertaken and that her grievance was not being upheld. The Worker submits that no formal meeting occurred to hear any further detail relating her grievance and the only communication she received was when HR Unit issued the outcome. The Worker subsequently appealed this decision but then she was informed by the Employer on 23 December, 2020 that the appeal was not upheld.

The Worker submits that fair process should have allowed for formal engagement for her to set out her position in relation to the grievance. However, the Worker submits that this opportunity was not afforded to her in either the formal grievance process or the appeal. The Worker submits that she was not afforded fair procedures or natural justice in relation to the manner in which her grievance was dealt with by the Employer.

The Employer submits that the Worker was employed on a specific purpose contract on 28 September, 2015 which unequivocally stated that the purpose of her employment was to cover the vacancy created by the extended maternity leave of a specific employee.

The Employer submits that the Worker’s contract of employment stated that the other employee may avail of a career break following her extended maternity leave and in the event that this occurred, the Worker’s contract of employment would be extended to cover the period of the other employee’s career break. The contract of employment also stated that if the other employee resigned her post with the Employer that the permanent vacancy would be filled in accordance with normal recruitment practice.

The Employer submits that the other employee applied for a career break following the expiry of her maternity leave which was granted and commenced on 30 December, 2015. The other employee’s career break was subsequently extended for a further period of 1 year for each year from 2015 to 2019. The Worker was informed in writing by the Employer each year from 2015 to 2019 about the situation and that her specific purpose contract was being extended on each occasion for a further period of one year to cover the other employee’s career break.

The Employer submits that the Worker was notified in writing on 27 October, 2020 that her specific purpose contract would be coming to an end on 30 December, 2020 as the other employee had decided to resign her position.

The Employer submits that the Worker initiated a formal grievance under the Respondent’s internal grievance procedures in relation to this matter and the grievance was not upheld. The Employer submits that the Worker’s grievance was dealt with in accordance with the established internal grievance procedures. The Employer submits that there was a comprehensive meeting held with the Worker on 10 November, 2020 (i.e. the day before she raised the formal grievance) and that she had been afforded an opportunity to fully articulate her position in relation to this matter at this meeting. The Employer submits that the Worker was accompanied by her Trade Union representative at this meeting and was afforded the opportunity to put forward all relevant arguments and facts in relation to the matter at this meeting and therefore, there was no requirement to hold a further meeting with her to discuss these matters on the basis of the grievance complaint.

The Employer submits that the Worker subsequently appealed the decision not to uphold her grievance and that this appeal involved an extensive review of the decision taken in relation to the Worker’s grievance and the process undertaken to deal with same. The Employer submits that the appeal officer held that the process followed in relation to the investigation of the grievance complied with fair procedures. The Worker was informed by the Employer on 21 December, 2020 that her appeal was not upheld.  The Worker’s employment was subsequently terminated on 29 December, 2020 in accordance with the terms of her specific purpose contract.

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

The circumstances which resulted in the instant matter being referred for adjudication under section 13 of the Industrial Relations Act 1969 emanate from a dispute between the parties involving the Worker’s employment status arising from her period of employment with the Employer from 28 September, 2015 until 29 December, 2020.

The Worker claims that she was incorrectly provided with a specific purpose contract on her appointment as a temporary clerical officer with the Employer and that she should have been provided with a fixed term contract. The Employer disputes this claim and contends that the Worker was employed on a specific purpose contract in 2015 to cover the period of maternity leave and subsequent career break of another employee.

It was common case that the Worker invoked a grievance under the Employer’s established internal grievance procedures in relation to the aformentioned dispute concerning her employment status towards the latter end of her period of employment. In essence, the Worker contends that she was not afforded fair procedures in relation to the manner in which the grievance procedure in relation to this matter was conducted by the Employer. Therefore, the issue in contention between the parties in the context of the within dispute under section 13 of the 1969 Act relates to the question as to whether or not the Worker was afforded fair procedures in relation to the manner in which her grievance was dealt with by the Employer.

The key procedural deficiency which the Worker has identified in relation to the grievance procedure relates to her claim that she was not afforded the opportunity of a formal meeting during either the grievance or appeal process to set out her position in relation to the grievance. In considering this issue, I note that there was extensive communication between the parties concerning the Worker’s employment status during the period from 22 September, 2020 to 11 November, 2020 when she invoked a formal grievance in relation to this matter. It was not in dispute that there was a virtual meeting between the parties in relation to this matter on 10 November, 2020 i.e. the date before the Worker initiated her formal grievance. I further note that this meeting was attended by the Worker, her Trade Union representative and the Employer and that the subject matter which subsequently formed the basis of her grievance (namely the issues concerning her employment status) were discussed in detail at this meeting. It was not in dispute between the parties that the Worker was afforded the opportunity at this meeting to fully articulate and set out her position in relation to the subject matter of her grievance. In the circumstances, I am satisfied that the Employer was fully aware of all of the material facts which were relevant to the Worker’s grievance and that these facts were taken into consideration during the internal grievance process.

I am also satisfied that the manner in which the Employer conducted the appeals process was fully in adherence with its internal grievance procedures and compliant with the principles of fair procedures.

Having carefully considered the submissions of both parties, I find that the manner in which the grievance procedure and subsequent appeals process was conducted by the Employer complied with the standard of fairness that could be expected from a reasonable employer. In coming to this conclusion, I find that the Employer adhered to the basic requirements of procedural fairness which are set out in the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000). This Code of Practice is promulgated pursuant to section 42 of the Industrial Relations Act 1990 and an Adjudication Officer is obliged to have regard in deciding on any case to which it relates.

In the circumstances, I cannot concede to the Worker’s claim that the manner in which the Employer conducted the grievance process was lacking in procedural fairness or was contrary to the principles of natural justice.

I cannot concede to the Worker’s claim that the manner in which the Employer conducted the grievance process was lacking in procedural fairness or was contrary to the principles of natural justice. Accordingly, I recommend that the Worker should accept the outcome of the grievance process.

Industrial Relations Act, 1969 – Section 13 – Trade Dispute – Specific Purpose Contract - Grievance Procedures