Worker

Employer

Anonymised Parties

Laboratory Technician

County Council

Representatives

Ms. Michelle Connaughton, Fórsa Trade Union

Mr. Keith Irvine, LGMA

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-00043143-001

19/03/2021

The Worker is engaged as the Acting Chief Technician for the Employer. On 19th March 2021, the Worker referred the present dispute to the Commission. Herein, the Worker stated that she had been engaged in an “acting up” capacity for the last number of years, and as a consequence of the same she should be permanently appointed to the post.   By response, the Employer submitted that the filling of a permanent post must be subject to open competition following an operational review.

A hearing in relation to this dispute was convened for, and finalised on, 11th February 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker was engaged as the Chief Laboratory Technician for the Employer since 5th March 2019. A confined competition took place in March 2019, and following successful interview, the Worker was placed first on the panel. While the Worker is fulfilling the role on an “acting up” basis, the recruitment process has not been finalised to date and the Worker has not been permanently appointed to the role.  The post is an approved permanent vacancy and remains unfilled on a permanent basis. Having regard to the foregoing, the Worker submits that she has a reasonable expectation of being made permanent in the role and that the Employer should finalise the recruitment process in this regard.

By response, the Employer accepted that the Worker had been engaged in an “acting up” capacity for the last number of years. The Employer submitted that three other persons within the department are acting in a similar capacity. Appointment to permanent posts may only occur following a review of business needs and operational requirements. In the event that a permanent post is required at this stage, an open competition must be held regarding the appointment. Regarding, the Worker’s position in particular, this is the subject of an ongoing amalgamation with another government department. The protracted nature of these discussion has led to a delay in the creation of permanent posts. The Employer has accepted that the Worker was placed first on the panel following a closed competition. However, it was submitted that the panel to which the Worker was appointed has expired and there is no method by which the Worker can be appointed to a permanent role without the Employer holding an open competition, and the Worker being successful in that competition.

The present dispute relates to the formalisation of an “acting up” arrangement. In the matter of Galway County Council -v- A Worker LCR 21800, the Labour Court held that,

“The Court has been given to understand that the competition in question was conducted in accordance with relevant statute and collective agreements. The Court has been made aware that two candidates were appointed from the competition and that the panel in question has now expired.

The Court has been given no basis to understand how, having regard to the fact that the process of appointment of staff in the sector is governed by statute and collective agreements, it could intervene in this matter.”

In the present matter, it is clear that a custom and practice has arisen whereby permanent posts are filled following an open competition. It is also clear that no such competition has occurred in this instance. It appears that the circumstances regarding the same involve a protracted negotiation between the Employer and another public body. The outcome of these negotiations are unknown, however it is not unreasonable to assume that the same may involve that body taking over some of the roles formerly completed by the County Council. In such circumstances it is not unreasonable for the Employer to fail to create a permanent post until the negotiations are finalised.  Notwithstanding the same, were I to accede to the Worker’s request I would in effect pre-empt the outcome of these negotiations and to supplant the open competition that must occur in these instances.

Having regard to the foregoing, and while I have considerable sympathy for the Worker, I find that I cannot recommend in her favour.

I do not recommend in favour of the Worker.

Acting-up, open competition,