Worker

Employer

Anonymised Parties

Worker in the Disability Sector

Public Health provider

Representatives

 SIPTU

 HR

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 - 00000989

09/01/2023

This case is concerned with a dispute regarding a claim for regularisation into a higher graded post as an exceptional case on its merits. The generic terms of employee and employer are used to describe the parties directly involved.

The employee performed the duties of an acting manager at Grade VI level in a care centre in the disability service on dates submitted by the union as 11.06.2018 to 12.11.2018. In November 2019 a business case was made for an upgrade but this was rejected. A permanent appointment was made to the post. That appointee occupied the post from November 2019 to March 2020. When that person left the post, the employee in this case resumed providing acting cover which continued until November 2022 under different(successive) contracts. The employee has continued to cover aspects of the work she covered while paid as a Grade V1 since the centre closed. The submitted that the employee was covering the Grade V1 post for a period of forty-nine months. In 2023, the employee issued a memo dealing with the effects of the Supreme Court in the case of Power and that applies to those on fixed term contracts working in higher graded post for more than four years in total. The employee is seeking retrospection of the Grade V1 post to be paid to her from November 2022 as an exceptional case based on the circumstances.

The employer set out their dates for the employee providing cover as a Grade V1 which they submitted totalled three years and six months paid cover in the higher post. There was a period of broken service which meant that 068/2020 did not apply and they understood that in the Power case there was no break in service-that was all continuous. The memo issued related to that decision had no impact in this case. The employer is firmly of the view that the claim is not justified under the relevant policies/position sin the employment as set out in 2020 and 2023.  The post which was occupied on a cover basis no longer exists-it was transferred as a grade within the area. Recognising that the employee does some work that carried over from the higher post, the representative cast some doubt as to the extent of that work, as she is handling some aspects herself. The employee was paid as the higher grade for six months after the centre closed.

I consider this is a case where the employee could be deemed unlucky in that her period of continuous acting up falls outside the period specified by Circular 068/2020 of four years or more continuous service. That said, there was a break in the period of acting up and that break was for a genuine reason-i.e., another person was appointed to the post on a permanent basis but vacated the post a few months later. In relation to the calculation of the period of paid cover for the higher post-I am inclined to conclude that the total period was less than four years based on the payroll records which are a factual record. In any event, there was no four years of continuous service as required by the directions issued by the employer in 068/ 2020.  In this large employment, there will always be people who fall outside the periods specified in that type of circular which usually result from collective negotiations. The fact that the service has now closed and the Grade VI post previously filled by the employee in this case no longer exists in the same form, is an added factor in my deciding that the facts do not justify an upgrading as an exceptional case. For the sake of completeness, I do not consider that the terms of the memorandum issued in response to the ’Power’ case apply in this instance.

Claim for regularisation