Worker

Employer

Anonymised Parties

A Refuse Worker

A Council

Representatives

SIPTU

 Internal/Self-represented

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-00045456-001

29/07/2021

The Worker works as a refuse collector for a council. This dispute refers to the opportunity to “act up.” The Worker claims that he has been treated prejudicially by his employer, in this regard. He submits that subsequent to advertisement, interview and empanelment, he was not offered the opportunities to act up in order of the panel, but instead it was offered to someone else ahead of him, who was not on the panel.

The Employer denies the Worker’s claims and submits that it is bound by permanent arrangements which are in place, and which were put in place in conjunction with the union. It submits that a panel was formed based on an interview process and that people may be chosen in the order of merit, as opportunities arise, but a permanent agreement always supersedes. It submits that what happened in this case is that the permanent arrangement was applied correctly.

As per the written submissions:

The case before you today is simply, in essence and in effect and two-part –

o   The Employer has not 'allowed' or given effect to the empanelling of the Worker’s position at No. 2 in/on the Assistant General Foreman (AGF) Panel, i.e., a suppression of promotional opportunities and consequently, and

• • The Worker is at loss of earnings per being denied 'acting' vis-å-vis the duties of the AGF role and the associated remuneration, including pension accrual, for which he is seeking the addressing of same, going forward, and the 'proper' remuneration, including all retrospection, effective, mid-November 2020.

At the hearing

The Worker’s representative submitted that the Worker had interviewed and been empanelled for an acting up position but was not offered the opportunities to act up (as they came up), as he expected, and which was submitted he should have been. Instead, someone who the Worker’s representative submitted had no rightful claim was offered the opportunity (and took it up) ahead of the Worker. It was submitted that this impacted the Worker financially, and in terms of future promotional opportunities, as he was denied the experience of acting up.

There was dispute between the parties with respect to the purpose of the panel and its structure. The Worker’s representative submitted that there was an advertising error, and that when people applied for the panel and interviewed, they did not realise they were, in effect, applying for the No. 2 spot on the panel. He submitted that the panel was not utilised in the way it should have been.

He submitted that he had tried to resolve the matter locally, to no avail. He submitted that the union were aware of the structure within a permanent panel, that a pre-existing permanent agreement with someone may be in place but that is different to the acting up arrangements which is just to facilitate the day-to-day running.

The Worker’s representative submitted that if a person has an agreement in place, and refuses to take up a position, normally that person would go down to the bottom of the panel, but in this instance that did not occur – that person was re-offered acting up opportunities as they came up. He submitted that what occurred was not the normal procedure or utilisation of the panel.

He submitted that the Worker was at a loss because of these actions.

The Employer submitted that interviews were held in February 2020, the panel was announced the same month and the Worker as No. 7 on the permanent panel.

The Employer outlined the hierarchy in the relevant department (organogram) and submitted that the panel was used for two (2) purposes – one permanent, and one temporary. It submitted that the panel was live initially for one (1) year, and then for a second year.

The Employer submitted that the Worker was No. 4, on the panel for short-term actings; and that there were nine (9) in total on the panel.

The Employer submitted that No. 1 on the panel was offered the job in Feb 2020.

It submitted that there was a pre-existing agreement in place, that the junior foreperson would be offered short-term actings in advance of the people on the panel. Initially, the junior foreperson did not exercise their right to claim the acting, but as future temporary actings came up, they were offered on each occasion to the junior foreperson ahead of those on the panel; Having initially turned it down, the junior foreperson (who is also a member of the same union representing the Worker at this hearing) took up a subsequent opportunity offered, ahead of the people on the panel as he is entitled to do under the permanent agreement.

This panel has since expired; and another panel has been formed in the meantime.

The Employer submits that permanent agreements cannot be overridden; that the permanent agreement is in writing, and has to be laid down; that pre-existing agreements have to hold precedence over temporary panels/arrangements; that the Employer has a permanent agreement with the employees (negotiated with the unions) and that the person with an entitlement under that permanent agreement exercised their right to claim it.

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

I conclude that there is a pre-existing permanent arrangement in place, which was put in place by the Employer, in consultation with the unions, and that the order of the panel was correctly and properly applied.

I conclude, however, that the effects of that pre-existing permanent arrangement was not clearly advertised to the Worker prior to his application for and interviewing for the role/panel (although clearly the union would have been on notice of it).

I recommend that the Employer pay the Worker €1,000 in full and final settlement of this dispute.

I recommend that in the future advertising of opportunities, if a pre-existing permanent arrangement which cannot be over-ridden is in place, that that fact is clearly advertised in the information booklet advertising the job, panel or acting up opportunity, so that a candidate applying is clearly aware of the practical application of the policy to the role to which he/she is applying, prior to applying for and interviewing for the role.

Industrial relations; Acting up agreement; Pre-existing permanent arrangement; Advertisement;