Worker

Employer

Anonymised Parties

Admin worker

Public Body

Representatives

 Fórsa Trade Union

 LGMA

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000375

14/06/2022

This dispute arises from the fact that the employee took on all of the duties of a higher grade when a colleague retired at the end of 2012. The employee performed those duties without payment until 2019. In 2021 the employee was unsuccessful in a competition for inclusion on a panel to fill vacancies at the higher grade. The complaint form stated that the Union is seeking regularisation for the employee in the post on the basis that she performed the higher graded duties for 10 years. The terms ASO and Grade 1V are interchangeable in the terms of the grade of the post.

The Union gave an account of the workload performed by the employee over a period of nine years and the impact of that workload on her. Over the years she had tried to obtain the support of local management for payment for the work without success. Local managers including the grievance hearer always acknowledged the work she had performed over the years. It was only after an intervention by the Union in 2019 that an acting allowance was paid. When paid it was implemented in six monthly and not weekly payments and the lower rate was paid for overtime.

In their submission the Union sought payment of full retrospection of the acting allowance and the appointment of the employee on an ASO CID based on the decision is Power v HSE. They referred to the erroneous interpretation of the primary legislation by the Labour Court and contended that the employee had worked successive six monthly contracts without objective justification, an entitlement to a CID occurred.

The employee was employed as a clerical officer in one location since January 2001. Prior to December 2012 there was an ASO working in the same area of operation. The previous postholder retired in December 2012. Due to the moratorium in place at the time, the ASO post was not filled and the employee in this dispute took over the higher graded duties which she performed at the clerical officer grade until 2 April 2019 when she was appointed as a temporary ASO and paid accordingly. An additional clerical staff member was also appointed to provide cover. In July 2021 the employer held a competition for vacant ASO posts. The employee was unsuccessful. Over 30 posts were filled from the panel formed from the competition. That panel was extended until July 2023 with 52 people remaining on the panel. The employee’s acting arrangement was extended to 31 December 2021 as she had lodged a grievance and to facilitate the transition of a new ASO. The employer set out details of the grievance procedure followed which did not uphold the grievance. Part of the grievance related to the conduct of the interview process, a complaint which was also not upheld.

There is a clear understanding across this sector that all acting vacancies are temporary in nature and are to be filled from a competitive process. Management relied on various third-party recommendations in support of their principled position that such vacancies are to be filled by a competitive process. At the hearing management explained that there is not agreed mechanism for converting temporary acting arrangement to permanent appointments as may apply in other sectors in the public sector from time to time.

In terms of the position of principle articulated by each side to the dispute, i.e. for and against the regularisation of the employee in the ASO post, I find no merit in this aspect of the case made on behalf of the employee. If the Union genuinely believed there was a case to be made under the Fixed Term Work Act for a CID, they should have supported the employee to bring forward such a complaint when they intervened on her behalf in or around 2019. Equally, this trade union is central to negotiations on behalf of the administrative grades across the related employments in this sector yet there is no evidence that they sought a regularisation agreement for those in long-term acting roles at a higher grade. It must be presumed therefore that the Union had a direct or implied understanding with the umbrella employer body that while they would argue some issues on an individual basis-seeking temporary arrangements, but no understanding, and perhaps no desire to have such an understanding, that long term ‘actors’ would be regularised other than by a competitive process.

At the hearing I questioned the parties as to the long-term acting arrangements in place within the employment and the Union subsequently provided a copy of circular LG(P) 08/12 09.11.12. This circular was put in place to address the matter of posts falling vacant due to the national recruitment moratorium in place at the time and in order to reduce and consolidate payments for acting arrangements. Noting that the worker in this case commenced providing cover for two posts including the higher posts after that circular was issued, she would have been obliged to work for 84 days without any payment of an acting allowance. While the circular urges reorganisation of work to eliminate the potential for acting in higher posts-where the worker in this case was effectively covering two people’s workload most of the time for the next nine years, it is difficult to see what reorganisation or redistribution was possible or occurred other than all of the duties and responsibilities transferred to her. The circular did allow for applications by the employer for acting arrangements to be put in place. If they did so in this case, the worker was not informed. The fact that the Grade 1V post was filled from the panel for such vacancies, clearly indicates that the post at the higher level always existed.

It would appear therefore, that the employer in this case, accepts that the employee performed the duties of a higher graded post for many years but made no meaningful attempt to recognise the position of the worker in this case for several years until 2019 when approached by the Union to seek an acting payment. But then why would they-the employee was performing the work of two post holders for years-for the price of the lower graded one. It is for this reason-that the employee concerned carried out the duties of not one, but two positions, for such a long time without any payment and without any support from her employer, that I am recommending payment of a lump sum in compensation by the employer to the employee-as a gesture of good will. The amount recommended does not reflect a value proportionate to the work performed by the employee or the savings accrued by the employer, is what it says, a gesture of good will which in my view the employee well deserves. I am conscious of not setting a precedent but no such potential was highlighted at the hearing in respect of this employment.

Noting that the employee clearly struggled with the interview process, probably not having competed for a promotion for many years if at all, I also recommend that, in the event that she does compete in the next Grade 1V competition, that HR arrange a tutorial for the employee in interview techniques, noting that the competition would be for a panel and she may not find herself promoted into the grade 1V in her current location if she is successful in the panel competition.

Finally, if it were to be said that I have not followed the precedents cited by the employer side-I have done so in that I do not recommend appointment of the employee as a Grade 1V and in those cases cited, that was the claim rejected by other decision makers, as it is in this case.