Worker

Employer

Anonymised Parties

Water Services Operator

A Public Body

Representatives

 SIPTU

Human Resources Manager

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-00045610-001

10/08/2021

On August 10, 2021, the Union requested that a Trade Dispute be investigated on behalf of the Worker. The case centred on a claim for confirmation of Grade 5, Water Curator, following an acting up pattern of two decades.

The Respondent has rejected the claim.

Both Parties were represented at hearing. Both Parties made helpful written submissions at hearing.

An important context and background to this case is the omnipresent Service Level Agreement on the delivery of water services in the area of employment. This case centres on the circumstances surrounding a derivative National Agreement which evolved from the SLA.

The Union outlined that the Worker applied for the position of a Grade 5 Water curator following a pattern of “acting up “over two decades. The post was subsequently downgraded to Grade 3, and the Worker was seeking confirmation in position with retrospection.

The Worker had commenced work in July 1999 and held the position of Water Services Operative, Grade 3. He worked at the higher grade 5 and received payment on an acting basis

The Union outlined that that the worker had attended for interview for Grade 5 relief on 11 August 2017 but did not receive an outcome from this process. He had chased this up in May 2018 but was unsuccessful in obtaining an outcome. The Worker understood that there no problems at interview and appointment was to follow.

He included a copy of an acknowledgement of his application for regularisation at grade 5

Other positions at grade 5 existed around the geographical area, but the position he had acted in was subsequently downgraded. 

In response to the Employer submission, the Union submitted that the worker had never received the letter from the Recruitment Officer relied on. the Union did not accept that the Employer made a mistake, the worker was under the clear impression that he had succeeded at interview.

The Union contended that the worker had been disadvantaged by his exclusion from the Grade 5 position

The Union exhibited a document dated May 24, 2017, which set out 17 zones across a geographical spread, where regularisations by competition were planned.

The Employer set out the employment background for the Worker from July 1999 to the present day. His substantive post is a Sanitary Caretaker, Grade 3.

The Public Body rejected the claim as advanced by the Union.

The Employer Representative outlined that a Service Level agreement was in existence with a named third party. This specifies the nature and extent of water services staffing on numbers and grade of staffing.

The Employer set out the locum arrangements which pertained to covering annual leave and other absences for a neighbouring g curator. This resulted in a per diem of €30. Payment of a per diem of €30 also prevailed when the Worker covered in “an acting capacity “in a higher post

In addressing the competition referred to in the Union submission, the Employer recalled the 2017 IR process at National Level on behalf of Local Authorities. 95% of the water services headcount was to be filled on a permanent basis.

What followed was a 33-part internal recruitment competition to address the legacy of residual actors in the water services. The Worker was incorrectly identified as a long-term actor at grade 5, instead of a short-term locum.  The post holder at grade 5 returned to his position.

The Sanitary curator was incorrectly advertised, and the error not picked up until after the interview.

The Employer exhibited an undated letter signed by a recruitment officer which confirmed that the worker had been placed No 1 on the panel of qualified candidates. A clarification was attached that the position was at grade 3 and not 5.

The Employer disputed any downgrade of the workers position and emphasised the circumstances of the mistake which occurred at a high level of recruitment activity in 2017.

The Employer catalogued records of when acting up pay had been discharged to the worker but refused any liability towards him for regularisation in a post ion which he did not serve in long term.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

I have investigated the dispute before me.

Given the Labour Court repeated guidance that they expect an issue to be teased out locally prior to referral to a third party, I asked the parties what measures they had taken to resolve the matter internally, prior to referral.?

I understood when the Union confirmed that they had sought to chase up the appointment and had not succeeded.

The Employer was reliant on the clarification attributed to the Recruitment Officer, which for me was undated and therefore difficult to draw direction from. The author was not present at hearing.

As I listened to the Parties, I began to understand that the sanction for regularisations in 2017 was a very positive development in pursuance of a 95% employment stability rating.

I found it difficult to understand if the worker was invited to interview, participated in interview and received feedback there, so much so, that he understood he was successful, that he let the matter rest until 2018.

If there were 17 posts sanctioned for regularisation, I am not satisfied that the Union did not recall this anomaly occurring in a joint union management agreement in 2017. If that 17th position was not regularised due to a post holder returning, then surely a local arrangement could have followed to fix the 17 posts.

I accept that the worker had an honest belief that he was to progress to a grade 5 post. However, he did not reflect this in his request for an outcome of interview.

I have considered both parties stated positions in this case. I respect the overarching National Agreement of 2017 and accept that the complainant did not hold eligibility for appointment in the position he was seeking to reconcile as the post was not vacant and the incumbent returned.

However, I have found serious shortcomings in the manner in which the competition was conducted by the Employer. Implementation of a National Agreement in a local setting is a very serious manner and, in this situation, was worthy of a more robust oversight by both parties.

I am not satisfied that the Worker was treated fairly or reasonably in his pursuance of the grade 5 position. At best the undated letter attributed to the Recruitment Officer is ambiguous and illogical as it simply doesn’t make any sense for me, at least, that in the context of a national agreement on regularisations that the worker would be expected to interview for his own grade again.

I cannot identify a basis on which to appoint the Worker to a higher post under the terms of the national agreement 17 positions cadre. Time has passed.

However, I have identified that he was treated unfairly on his journey to career progression. He was entitled to receive a clear line of communication and full disclosure in the face of an error made by his employer. This simply did not occur.

I have also identified that the Union also owed the worker a duty of candour on the roll out of the 17 posts in 2017.

For now, and in spite of my misgivings on an incomplete grievance procedure at base, I find that there is merit in the Workers dispute and there is a necessity to move to closure of this matter.

Confirmation of post following long-term acting with retrospection