Worker

Employer

Anonymised Parties

Manager

Health Care Provider

Representatives

Eamonn Donnelly Fórsa trade union

 Eamonn Ross HSE

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-00048039

07/01/2022

This case is concerned with two disputes one of which is the manner in which the employer filled a post at a higher grade from a competition for a post advertised at a lower level and the second is a payment owed for approved time in lieu.

Between 2018 and 2020, the worker was employed as a manager in one part of the employers organisation. The submission suggests she had difficult experiences at that first location eventually leaving with such issues unresolved to take up an opportunity in another location.

While in the first location she accumulated 225 hours approved time in lieu. She did not receive either the equivalent time off or the payment. She is seeking payment at her current, higher rate of pay for that time in lieu on the basis of the delay and what her representative described as all the ‘messing’. They were not aware that the claim was conceded until reading the submission for the hearing.

In 2019 the worker applied for a promotion advertised at general manager level. The post was filled by the person who was placed first and the worker in this case was placed third on the panel. In March 2021 the post was filled again, this time by the person who was placed second on the panel, at a higher rate pay (Head of Services) but without being readvertised. As far as the worker was concerned the panel had expired in April 2020 and she was not informed of any extension. When she queried this appointment without a further competition in April 2021, she was informed that the panel had not expired and later she was informed that the panel had expired on 26th April 2021.

It is the Unions contention, as the negotiator of the grade increase for those at General Manager Level under which they were regraded at Head of Services level, that the terms of that agreement were agreed in 2019 and were in place when the GM post was advertised and should have been applied to that post from the outset-and the initial short extension in the closing date as the salary was under review should not have been necessary. However, once the first person vacated the post the post should have been readvertised at the higher level and this is standard practice over many years. What occurred in this case was a breach of all protocols and regulations. The national agreement was intended for current postholders and was never meant to apply to future vacancies unless advertised at the higher level. There is no evidence of the approval of an extension of the panel from the first competition from 2020 to 2021.

The worker was disadvantaged by the change in the lifetime of the panel and, given her experience including deputising for the general manager, she might well have been successful in applying for the post as advertised at the more senior level.

The time in lieu claim is conceded as money due which the employer is willing to pay in a practicable manner. However, it is to be paid at the rate of pay which applied at the time and not the current higher rate of pay of the worker in her current post.

In relation to the promotional post, the employer submitted there was nothing untoward here. When the post was originally advertised, the closing date for applicants was extended and this was notified-on the ground that the salary was under review.

One person who was appointed was paid at HSO level but later vacated the post. In 2020 the employer was dealing with the Covid situation, and the instruction was to complete all recruitment processes. The unsuccessful candidates were notified of a first extension of the panel for a year, no salary was provided with the advertisement.  While they could not provide any documentation approving such an extension the lifetime of the panel was later extended by further year and the person placed second on the panel was then appointed at the nationally agreed salary for the post-HOS. At the hearing they clarified that this was the same post as was initially advertised.

Time in lieu. This claim is in respect of 2019-and remains unpaid with the claim only finally conceded in the submission to the WRC. This is not an acceptable treatment of an employee. She has displayed great patience in waiting as long as she has for payment of what are in effect wages for making herself available for work in excess of her contract hours. In the circumstances and to encourage better practice by the employer in the future, I recommend that the 225 hours be paid at the rate of pay which applied at the time they were worked, plus a sum of €1000 compensation for the extended delay in paying wages due.

Promotional Post.

It is interesting to note that in her response to the worker in April 2021 a manager stated, ‘following my review of all of the documentation….my decision is that the panel was not expired at the time of appointment, and it was an appropriate panel for the post filled.’ This same manager attended the hearing, but the management side came empty handed in relation to any documentation prior to the worker querying the situation in April 2021 which could provide verification that such an extension was approved, by whom, when and for what reason. At very, very, best this was sloppy practice by the employer, a public body. That said there are reasons why I do not recommend concession of the claim by the Union for compensation.

I could conclude that the breach of procedures and protocols claimed by the union was one of wider impact than one individual and not an individual issue which qualifies to be decided as  Section 13 dispute. However, as this was not an argument presented at the hearing by the employer, I will proceed to deal with the case as presented by both parties.

 At the time of the replacement vacancy arising, the complainant was no longer working at the location in question and therefore, while she had previously acted up in the GM post-that was not something she was doing when the second person on the panel was appointed in terms of claiming that experience was current on her part or a job she was performing at that time. Secondly, and more importantly, the post which was filled was the same as the one she had competed for previously-i.e. GM. All that had changed was the higher rate of pay. It is difficult to see the argument that she might have been more successful than the person place second the first time round and she is entitled to come to that conclusion, because the rate of pay for the job was now officially higher-when in fact the higher rate of pay had been agreed at the time of the first competition-according to the Union.

From the Unions submission it appears there is a backdrop to the employment relationship in the location in question which had its own difficulties, and which are/were the subject of separate processes. The worker may see a direct connection between all of those issues including this current dispute around the promotion. However, the case presented in this element of the dispute does not stand up to scrutiny on its merits as presented.

Filling of promotional post-payment of time in lieu