ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000989
Parties:
| Worker | Employer |
Anonymised Parties | Worker in the Disability Sector | Public Health provider |
Representatives | SIPTU | HR |
Dispute(s):
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 |
Workplace Relations Commission Adjudication Officer: Janet Hughes
Date of Hearing: 12/07/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
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. |
Summary of Employee’s Case:
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. |
Summary of Employer’s Case:
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. |
Conclusions:
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.
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Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I do not find any basis on which to recommend concession of the employee’s case in this dispute.
Dated: 21st July 2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Claim for regularisation |