Complainant

Respondent

Anonymised Parties

A Firefighter

A Local Authority

Representatives

SIPTU

Act

Dispute Reference No.

Date of Receipt

Complaint under Section 13 of the Industrial Relations Acts 1969]

CA-00042838

08/03/2021

The complainant commenced employment with the respondent in 1985 and retired on October 31st, 2021.

He was asked to act up in a higher position from March 16th to June 29th and is seeking to be compensated for the removal of the acting up allowance, which was not paid to him after June 29th, 2020 despite the vacancy not being filled.

At the start of the Covid pandemic, on March 16th, 2020, the complainant was contacted and requested to act up in a position in which a vacancy had arisen. He agreed to do so, and he was also asked to continue some of his former duties.

He agreed to this also on the basis that he should not be at a financial loss and would be paid all the allowances of the acting up position as if he had been acting. His manager said that this would be addressed afterwards.

At a meeting on June 11th, 2020, meeting his manager explained that he was unwinding the arrangements that had been put in place in March for Covid. This included that he would not regularise the vacancy in which the complainant had been acting and that the position would be advertised.

He asked the complainant if he would like to continue in the acting position in the interim but without the additional role which he had initially retained.

The complainant agreed and said he would act up and do a report on the impact of the Covid crisis. But he also asked his manager to check what the acting up allowances were and that he would go off and think about it over the weekend and they could meet up the following week.

On June 18th, 2020, the complainant confirmed that he would continue to act up. His manager explained the acting up payment and the complainant asked him to send the details in writing. It was again discussed how the matter of the complainant ’s replacement might be trained.

On June 22nd there was a further meeting at which his manager explained that there was a change of plan due to the lifting of Covid restrictions and opening of venues as announced by the Government.

The complainant said that he acknowledged concerns expressed by his manager regarding coping with an upsurge in work following the ending of the pandemic, however there was still a vacancy for him to act into the same as there was on March 15th, 2020. He was told it was not possible to facilitate a further acting up appointment

The complainant insisted on his right to act up and his manager accepted that he was a victim of the changing circumstances. He said he would suffer financially, through no fault of his own and requested continuation of acting up.

On June 29th, 2020, there was a further exchange between the parties but no change in the previous position although while later that day the manager asked for time to consider the matter further the complainant heard nothing

On July 7th he was told there was no change to the position and that he would not continue to act up.

As can be seen, the position of management changed, and the complainant was given a number of reasons by management to explain why he could not continue to act up. He had to take a case through his union in August 2020 regarding the failure to pay any acting allowances due and it continued to engage with the respondent on the acting issue but were told on November 20th that there would be no change. The matter was then referred to the WRC.

The complainant is seeking to be compensated for his loss of acting up allowance from 28th June 2020 until the vacancy was filled on a permanent basis. The complainant was paid an acting up allowance of €288.67 euro per week plus €134.25 allowance. (Total of €423.91 per week).

Historically the respondent management has increased the number of posts above previously agreed established numbers without consultation. The staff/union side never objected to extra positions, however any reduction was always subject to negotiation.

The complainant was unfairly stood down from the acting position on 29th June , despite there being a vacancy in the position, and despite the fact that two weeks prior he has been asked if he would continue in the role.

We respectfully request that you find that the complainant should have retained the acting allowance from 29th June until his retirement on 31/10/2021.

The complainant says that he is entitled to continue acting into this position until such time as a permanent appointment is made.

The current established number of relevant posts is six. This may change from time to time in order to facilitate specific projects and ensuring continuity of service due to the unprecedented global pandemic Covid 19.

Acting temporary positions were offered to two persons in the complainant’s grade on the basis that the first position was to fill a temporary supernumerary role (established due to the Covid pandemic) and the second to backfill another post.

The Senior Manager met with the complainant on 18th March 2020 to discuss a temporary position and it was also agreed that he should retain certain of his previous duties while acting into the temporary position.

The outbreak of Coronavirus Disease 2019 (COVID-19) evolved rapidly, and the respondent had an obligation to ensure that its operational staff were appropriately protected from risk when discharging their duty of care. There was a global shortage of PPE which made securing supply chains challenging. It was deemed necessary to appoint an experienced member of staff, at the higher level (supernumerary ), to engage effective stewardship of PPE to facilitate the safe completion of the respondent employees’ tasks.

The claim is based on his assertion that there are seven established higher-level positions and that as the most senior below this level he has an entitlement to carry out the vacant seventh position in an acting capacity until such time as the position is permanently filled. In fact, there are six established positions at the higher level.

(Details and examples were provided of some of these arrangements which are omitted as they would identify the parties).

When the requirement for the filling of supernumerary roles no longer existed and all six permanent higher positions had been filled there was no further requirement for any acting positions to be filled.

The respondent management has not identified any ongoing need for a seventh higher level position. There are therefore no vacancies.

This is an unusual case.

The complainant argues that he was entitled to continue acting up based on what he submits is the correct number of positions into which he would be eligible to act up, as long as it was vacant.

The respondent disputes his assertion of what the correct number of positions is. However, the problem does not end there.

It would not be uncommon for an acting up vacancy to remain unfilled, although perhaps less likely in the nature of this respondent ‘s business activity.

Normally, an entitlement to act up must have some connection to an employer’s need to fill a vacancy on such a basis and to continue to do so. An employer may decide not to fill a vacancy in this way and re-organise the work accordingly.

The complainant says that independent of any such consideration he should have continued to act up until the position was filled on a permanent basis

So, there are two issues here; the first, whether there was a vacancy and the second whether the complainant had the right to act up in it. There is an obvious third issue which is that he did not in fact act for the period for which he now claims a retrospective right to payment.

The respondent did accept that some small element of payment was due to the complainant but not the very significant sum sought.

I do not think as a general principle that there is a right to ‘act up‘, or indeed to continue to ‘act up’ if circumstances change, whether as in this case as a result of developments in relation to the pandemic or for any other reason, unless there is a specific local agreement which requires it. There was none in this case.

That said the basis of any initial appointment should be rather more clearly and formally set out than happened in this case.

The complainant said he had been ‘unfairly stood down’ from the acting position on June 29th, 2020, despite there being a vacancy in the position, and despite being asked if he would continue in the role a mere two weeks earlier. This implies a right to acting up which is not supported either by general workplace practise or his contract of employment.

Nonetheless, there were elements of the handling of the matter which could have been better, and in particular, the complainant was given a clear expectation that his tenure in the position would be of a longer duration than turned out to be the case.

This aspect of the matter could have been better, and more sensitively handled, bearing in mind he was approaching retirement after a long career with the respondent. On that specific point he has some basis for a grievance which is reflected in my recommendation.

However, I find that he has not made out any entitlement to have continued acting up regardless of the circumstances as they presented in this case. Having regard to the above my recommendation is as follows.

The complainant has not established any general right based on the principle that he had a claim to act up in the position based on the vacancy continuing to be unfilled.

In any event I accept the respondent ‘s submission on the correct number of positions.

The respondent accepted that a sum was outstanding to the complainant (approximately €1,500) to which, having regard to the respondent’s contribution to what might be described as the frustrated expectation on the part of the complainant and the degree of insensitive handling of the matter I add a further element of €3,500, bringing this to a total of €6,000.

I find that the complainant has not made out a case for the continued payment of the acting up allowance on the basis claimed.

However, having regard to the respondent’s contribution to what might be described as  frustrated expectation on the part of the complainant and a degree of insensitive handling of the matter in addition to the sum referred to by the respondent (approximately €1,500) I recommend a further element of €4,500, bringing this to a total of €6,000.

Acting up allowances