LCR22543

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

WESTMEATH COUNTY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s)ADJ-00031976, CA-00042499-001

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 24 August 2021 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A remote Labour Court hearing took place on 21 January 2022.

DECISION:

This is an appeal by SIPTU of an Adjudication Officer’s Recommendation ADJ-00031976 on behalf of a Worker with Westmeath County Council. The appeal concerns a claim for regularisation on an acting-up post and compensation for loss of earnings.

The Adjudication Officer did not find in favour of the Worker’s claim and SIPTU has appealed that recommendation.

SIPTU seeks that the Court recommends (i) regularisation of the Worker’s former acting post, (ii) compensation for loss of earnings when that acting allowance was unilaterally withdrawn, and (iii) compensation for the employer’s failure to follow procedures.

The Worker is an employee of the Council since 1991 and was promoted to the grade of Foreman in 2014. Later that year, he was appointed to the role of acting General Services Supervisor (GSS) with the Parks and Outside Spacessection in Mullingar.

He continued in that acting role to support the National Gateway Workplace Programme and remained in an acting role when the Gateway Programme finished in 2016. In January 2019, the Worker participated in a confined competition for a permanent post as a General Services Supervisor. He was unsuccessful in securing that role and placed third on the panel. The Worker reverted to his substantive post in April 2019 when his acting allowance payment was discontinued.

SIPTU submits that an agreement was reached between the Worker and the Council that the acting post would be regularised. This did not happen. Instead, he continued in an acting role until April 2019 when the allowance payment was withdrawn unilaterally, without consultation or notification. The Worker learned that the payment was stopped when he opened his payslip.

Despite the withdrawal of the allowance, the Worker has continued to carry out the duties and responsibilities of the acting role. SIPTU contends that the confined competition conducted in January 2019 was for a separate unrelated role to the acting role carried out by the Worker.

Matters came to a head with the withdrawal of the acting allowance payment at which point the Worker initiated a formal grievance seeking to have the acting post regularised and his pay reinstated. He also raised a grievance in relation to the outcome of the confined competition. SIPTU contends that the Council did not progress the grievances in line with procedures, and as a result it referred the matters to the Workplace Relations Commission.

LGMA, on behalf of the Council, rejects that any agreement existed to regularise the Worker’s acting up position. Acting posts are temporary in nature and the practice of reverting staff to substantive grades following sometimes lengthy periods of acting up at a higher grade is well established in the Local Authority Sector. There is no basis for the Worker to be appointed to a permanent role outside of a competition process. He was unsuccessful in that competition.

LGMA submits that no loss of earnings can arise in circumstances where the Worker was carrying out an acting role. The Worker remained in an acting role at the end of the Gateway Project due to an administrative oversight. He was not required to carry out carry out further acting up duties or responsibilities. Both his substantive and acting up roles had supervisory duties.

The Council submits that it responded by letter to the matters raised by the Worker in his formal grievance but heard nothing further from him, until he lodged a claim with the Workplace Relations Commission. It contends that the Worker failed to exhaust internal procedures before referring the matter externally.

The Court has considered the oral and written submissions of the parties.

Regularisation of Acting Post

The Worker in this case carried out the role of acting General Services Supervisor for a period in excess of five years. No issues were raised with the Worker’s work performance during that time. The Court fully appreciates the Worker’s disappointment at reverting to his substantive role after such a lengthy period in an acting role. For its part, LGMA, on behalf of the Council, acknowledged that it is not satisfactory from a governance point of view to continue acting up posts beyond their set timeframes.

Notwithstanding the above, the Court cannot support the Worker’s claim to have his former post regularised. No details were provided to the Court of any understanding or agreement concluded between the parties to regularise the Worker’s post.

Furthermore, both parties acknowledged that the recognised mechanism to regularise acting-up positions is through an open competition process and that this is the established practice in the local government sector. The Court has been given no basis to understand how it could intervene in the appointment process of workers to substantive posts. The Court cannot uphold the Worker’s claim to regularise his former acting up post and is of the view that the claim is not well founded.

Loss of Earnings

In light of the above,, the Court finds that there is no basis for a loss of earnings claim in circumstances where the Worker reverted to his original substantive post. In such circumstances, the Court does not find in favour of his claim for loss of earnings.

Procedural matters

It is clear that the matters before the Court came to a head when the Worker’s acting up allowance payment was withdrawn unilaterally, without consultation or notification, following which he initiated a formal grievance.

In response to questions from the Court, the Council accepted that the Worker’s allowance was discontinued abruptly and that the normal process is for direct engagement with an impacted worker before such an action is implemented. It appears to the Court that such an engagement did not occur in the Worker’s case.

In the Court’s view, there was also ambiguity regarding the status of the Worker’s grievances. The Council was of the view that the Worker had not exhausted internal procedures before referring the matter externally. SIPTU submitted that no response was received to their correspondence in July and August 2021 following up on the grievance and advising that matters would be referred externally if no reply was forthcoming. The Council could provide no explanation why such correspondence did not receive a reply.

In light of the circumstances of this case, the Court does not uphold the Worker’s claim for regularisation of his former acting up role or for compensation for loss of earnings. The Court is of the view that engagement with the Worker in relation to procedural matters before the Court was less than satisfactory. The Court recommends that the Employer makes an award of €1,500 in full and final settlement of the matter.

The Adjudicator held that the Worker’s claims were not well founded and should fail.

The Court finds that the worker’s appeal is partially upheld, and the recommendation of the Adjudication Officer is varied accordingly.

The Court so recommends.

NOTE

Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary.