ADJ-00042740

Complainant

Respondent

Anonymised Parties

An Employee

A Local Government Authority

Representatives

Eoin Powderly Powderly Solicitors

 LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act

CA-00044168-001

18/05/2021

The Complainant was appointed as a Library Assistant by the Respondent in 2000 and has been acting as a Ganger from June 2019 to August 2021 and from February 2022 to date.  The Complainant contended that he should have been regularised at the higher level and paid on the appropriate salary scale.  The Complainant submitted a case under the Industrial Relations Act in relation to regularising of acting up arrangements. 

The Respondent denied the allegations claiming that it is not possible to fill the position of Ganger on a permanent basis through any mechanism other than through competition. 

CA-00044168-001:

The Complainant submitted that he had been acting up as a Ganger for three years and verified the first date of acting up on the payroll system as the 11th April 2019.  The Complainant submitted that he should be regularised in his respective position and noted that on a number of occasions he had requested to have his position regularised as permanent and that the replies from the Respondent consisted of what he described as excuses, such as, “all positions can only be filled by competition” and that “acting up regularisation does not apply to outside jobs”.  The Complainant submitted that the reality is that he had been in the position of Ganger for many years and so it is clear that the positions are filled without competition.  He submitted that although he had been promoted without competition, the Respondent had not given him his entitlement of a change of title or wage increase and the pension entitlement attaching to the permanent appointment to the role.  The Complainant contended that the Respondent, while prepared to fill the positions without competition on a temporary acting up basis, would not recognise the new position was permanent in terms of appropriate compensation for the position.  The Complainant submitted that this was inherently unfair and took advantage of the Complainant.  The Complainant submitted that temporary arrangements cannot be seen to extend to three years and is, at a maximum, a six-month period and referenced in this regard, the Local Authorities (Officers and Employees) Act 1926.  The Complainant submitted that he had a genuine, reasonable and legitimate expectation of permanency in his position that had been created by the Respondent which may have resulted in missed opportunities elsewhere in the organisation.  The Complainant submitted that he continued to fulfil his role for the employer and yet he is not accruing pension entitlements or salary which he would if he was recognised as permanent in the role.  

The Complainant opened case law as part of his submission and referenced a senior manager versus a government body, CA00030031-001and outlined that in that case the worker was acting up for over four years and the employer claimed that they could not regularise the position as permanent due to the argument that the substantive post holder was also acting up in the role he had moved to and that this was exceptional circumstances.  The recommendation of the Adjudication Officer in that case was as follows: 

“Where the Respondent has requested that a recommendation be delayed until a review is completed, it could not guarantee when this would be finalised although it believed that it would be imminent.  In making my recommendation however I must recognise that the Complainant has already been acting up in the role, for 4-5 years and it is reasonable not to expect her to wait any longer, especially in light of the body’s own circular which states that temporary appointments extending beyond 12 months in duration ‘should be on an exceptional basis as they would run counter to the concept of temporary appointments’. 

I therefore recommend that the Complainant should be made permanent in the acting up role and that this should take effect from the date of acceptance of this recommendation.  This recommendation reflects only the specific circumstances of the Complainant and should not be taken to have a wider implication for other employees”. 

The Complainant submitted that he had joined the Respondents’ employment as a Green Machine operator in 2012 and that in this role he had worked in a number of other areas.  Sometime in 2012 or 2013, the Assistant Foreman became ill and was off sick and a staff member who was then employed as a Ganger was placed in the acting up Assistant Foreman position.  In the summer of 2013, the Assistant Foreman advised that he would not be returning to work, leaving the employee who had been Ganger continuing to act as Assistant Foreman.  The resulting temporary vacancy at Ganger level was then filled by another employee.  The Complainant submitted that the positions of Assistant Foreman and Ganger were never advertised since that time, a period of eight years at the time of the hearing.  Because the team was down an employee, the Complainant was asked to help more in the “Beaches” area and the then engineer told him to attend any courses relating to Beaches should a vacancy arise in the future.  The Complainant submitted that he had done so and had achieved ‘First Responder qualification in case of dangerous spillages/oil slick” and he had also acquired a certificate in using dangerous chemicals for when treating aquatic surfaces/slip ways, removing algae.  

The Complainant submitted that sadly in 2014 the Assistant Foreman died. 

In 2017 the employee who had been appointed to Beaches since the beginning of the shift, retired leaving the Complainant more or less full time in this area.  In 2019, circa March/April, the Complainant was appointed Ganger to the shift as the previous Ganger had left.  This appointment was made by the then Senior Executive Engineer and this was also voted on and agreed by the shift team.  Another new man had come in and taken up the Green Machine job, the Complainant was issued with a diary and asked to keep this diary on all aspects of the job, especially relative to Beach/Coastal section and to email a weekly detailed report to management.  Part of the Complainants’ selection and appointment was on the strength of his personal “Beach Management Plan” that he had submitted to the management in 2018, a good portion of which was officially adopted by the Respondent.  The Complainant was appointed acting Ganger for three years at the time of the hearing since his first recognised acting up payment on the salary system on the 11th April 2019. 

The Complainant submitted that in October 2020 positions on both the shift and the day time jobs were advertised and completed application forms had to be submitted by the 15th October, where the relevant shift, only the Assistant Foreman position was advertised and no Ganger position was advertised.  The Complainant was advised to put in his application form and to go for the position but he made HR aware of his long term acting status before the interviews commenced.  On the 6th November 2020, the Complainant sent HR an email making them aware of the long term acting situation and asking them about the Respondent’s and the CPSA Code of Practice.  In 2021 interviews took place on the 19th and 22nd of January.  On the 28th January the Complainant was informed by HR that he had been place 5th on the panel.  The Complainant submitted that all of the employees placed higher than him on the panel have either taken up position or left the organisation and as such he is now next in line on the panel for Assistant Foreman position but in this case the Complainant submitted that he simply wished to be regularised in his current position as Ganger.  

The Complainant opened a number of relevant documents including the Code of Practice for atypical appointments to positions in the Civil Service and certain Public Services Bodies, published by the Commission for Public Service appointments.   A Code of Practice is applied when appointing somebody to a publically funded position, one that needs to be filled under the Public Service Management (Recruitment and Appointments) Act 2004.  The Complainant drew attention to the basis for temporary appointments as set out in the Code, specifically that where the appointment is for a period of greater than six months, the Commission must be notified of a particular reason for the extended period of the appointment.  The Complainant also opened to the hearing a number of cases previously adjudicated upon by the WRC and the Labour Court, citing examples where previous such cases had resulted in a finding that the employee should be regularised at the higher grade.  

In conclusion the Complainant pointed out that there was nothing exceptional about a worker acting up and filling a higher role, and that in those circumstances the decision as set out in CA000300331-001, is identical to the instant case.  The Complainant submitted that he was simply seeking the security of permanency of his role and confirmation of his pension entitlement equivalent to his peers in similar roles.  The Complainant submitted that the effect of this regularising would be cost and WTE neutral, with no back filling of any consequential vacancies. 

The Respondent submitted that the Complainant was appointed as a Library Assistant in early 2000 and in accordance with his Contract of Employment as a Green Machine Operator shift in February 2012.  The Respondent confirmed that the Complainant is currently on the 13th point of the Green Machine Operation shift scale rate.  The Complainant was appointed acting Ganger on the ECU shift from June 2019 to August 2021 and from February 2022 to the current date.  The Respondent submitted that during these acting periods he continued to be paid as a Green Machine Operator as his own substantive pay scale is higher, however the Ganger role is a recognised supervisory role.  At the date of hearing, the Complainant still occupied the role of Ganger in an acting capacity.  

The Respondent submitted that from the 28th August 2021 to the 3rd February 2022, the Complainant acted up as Assistant Foreman shift and received a higher rate of pay for the duration of this period at the Assistant Foreman shift hourly rate which is the first point of that scale.  

The Respondent submitted that the Complainant emailed the Respondent on a number of occasions between November 2020 and February 2021 regarding the acting positions and the appointment process of the Respondent and the complaints process.  The Respondent responded to those queries and attached copies of the Grievance Procedure and confirmed that appointments could only be made to permanent positions following competition and that appointments could not be made to posts simply on the basis that an employee was acting into it.  The Respondent submitted that the matter was subsequently referred to the Workplace Relations Commission on the 18th May 2021 without having utilised the Respondents’ grievance process or utilising or exhausting local procedures.  The Respondent set out the following in relation to each of the respective claims: 

CA-00044168-001 (Industrial Relations Act): 

The Respondent contended that the Complainant had not utilised or exhausted the local procedures on this matter and as such pointed out that the Adjudication Officer should dismiss the complaint.  However, without prejudice to the above, the Respondent submitted that in relation to the claim in the current case, it is a matter of fact that the subject of employee appointments into acting posts at a higher grade is well established within the sector where the Complainant seeks to be appointed on a permanent basis to a role in which he occupies on an acting basis.  The Respondent opened the case ADJ 0008655 in relation to a Local Authority employee occupying an acting post for a number of years and who, subsequent to the competition for a permanent post, reverted to their substantive role, whereby the Adjudicator recommended “concerning the petition for a recommendation for appointment to the disputed role, I feel bound to follow the lead of the Labour Court in LCR20634.  I so recommend”.  The Complainant in that case appealed to the Labour Court LCR21800 who found in favour of the Counsel also, stating “the count has been given to understand that the competition in question was conducted in accordance with relative statute and collective agreements …. The court has been given no basis to understand, having regard to the fact that the process of appointment of staff in this sector, is governed by statute and collective agreements, it could intervene in this matter, in all of the circumstances therefore the court is unable to concede the appellant’s claim and the appeal must fail”.   

The Respondent opened other case law to strengthen the position as outlined in this case.  

The Respondent pointed out that they could see no difference between the current case and the cases referenced in their submission.  They submitted that the Complainant holds an acting post of Ganger, that for a permanent appointment a competition would need to be held by the Respondent, with the Complainant applying and being successful in that competition.  The Respondent has not identified a requirement for a permanent post.  The Respondent contended that the Complainant therefore can only continue to hold the appointed acting role, as is the practice in the sector, and cannot be appointed outside of a further competition process on a personal to holder basis. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties in advance of the hearing, all information given at hearing and all supporting documentation provided by the parties.  I set out below my findings in relation to each of the complaints. 

CA-00044168-001: 

The facts in this case are not in dispute nor are the timelines in relation to the acting arrangements.  The dispute centres around the contention of the Complainant that he should be regularised in his acting up position of Ganger without the requirement to undertake a recruitment process.  

The Respondent is emphatic that the post can only be filled through an open competition.  It is clear from the information provided by the parties in their submissions and by the parties at hearing, that the acting arrangement continued for a particularly long period of time, longer than would be normal within the Respondent employment and longer than is provided for in the Code of Practice. 

 The initial vacancy that was filled on an acting basis was brought about by the departure of the Assistant Foreman on sick leave.  After the Assistant Foreman initially went out sick he  unfortunately passed away in 2017.  The employee whose substantive post was that of Ganger, had been acting up as the Assistant Foreman and continued to do so for a significant period of time.  It was clear as well from the submissions that there was a knock-on effect from the Assistant Foreman grade down to the Ganger grade and in order for there to be a substantive vacancy level at Ganger level, positions at the higher level were required to be filled first.  It is also clear from the evidence provided that the Respondent set about filling those positions and that the substantive post holder of the Ganger post has recently been appointed to a higher level position.  In this context it is evident that the Ganger position is now vacant and therefore falls due to be filled on a permanent basis. 

In considering whether or not the Complainant has a valid case for regularisation based on the acting arrangement, I noted the circumstances that gave rise to the acting arrangement as well as the case law opened by the Complainants’ representative.  I also noted the content of the code of practice and the statutory obligations on the Respondent to fill posts by competition.  I considered carefully the case law opened at hearing by the Respondent and in particular the appeal to the Labour Court LCR21800 which stated that “the court has been given to understand that the competition in question was conducted in accordance with relevant statures and collective agreements … the court has been given no basis to understand, 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 matters.  In all of the circumstances therefore the court is unable to concede the appellant’s claim and the appeal must fail”.  Having considered this decision of the Labour Court I noted it’s reflection that the established practice in the sector means that appointments can only be the result of competition. 

The Respondent asked that the Adjudicator dismiss the case on the basis that there was no permanent position of Ganger required.  However, this position while true at the time of the submission by the, by the date of the hearing, the position of Assistant Foreman had been filled on a permanent basis, thereby creating a permanent vacancy in the position of Ganger.  Taking into account the above, I have found that there is a permanent position of Ganger which requires to be filled by way of open competition. 

CA-00044168-001: 

It is my recommendation that the post of Ganger be advertised by open competition and filled within six months of the date of issue of this recommendation and if the Complainant is the successful candidate that he be granted incremental credit for time served in the role in an acting capacity. 

Acting arrangements