LCR22819

1.Appeal of Adjudication Officer Decision No(s) ADJ-00040416 CA-00051702.

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 12 July 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969. On 13 June 2023 the Adjudication Officer issued the following Recommendation:

"Section 13 of the Industrial Relations Acts 1969, requires that I make a recommendation in relation to the dispute.

As I have concluded that, in the particular circumstances, the employer acted correctly I cannot recommend the worker is placed in a particular post and I cannot recommend he be paid any compensation.

I do recommend the employer engage with the worker to understand his ambitions within the organisation, and to help in any way they can to help him achieve these ambitions. This might be training, on the job experience and mentoring."

A Labour Court hearing took place on 1 September 2023.

DECISION:

This is an appeal by the Worker of an Adjudication Officer’s decision. The Adjudication Officer noted that the Employer had acted correctly and that he could not recommend compensation. He went on to recommend that the Employer engage with the Worker to understand his ambitions within the organisation, and to help in any way they can to help him achieve these ambitions. This might be through training, on the job experience or mentoring.

The Union on behalf of the Worker submitted that he was employed as an Invigilator/Mediator since 10^thJune 2006. In January 2015 the Worker took on the role of Development Officer (private) to cover the maternity leave of a colleague. That colleague then went on a career break. The Worker on the 1^stJanuary 2016 was offered and accepted a further fixed term in the post of Development Officer (private) for 30 months. This role was a Monday to Friday role whereas his previous role included Saturday and Sunday work. While carrying out the Development Officer role he retained the consolidated rate of pay but was not required to work weekends. That 30-month contract expired June 2018 and he received further contracts.

In October 2021, he became aware that the colleague whose post he had been covering had resigned from her post. In December 2021, he was furnished with a letter of extension which informed him that he would remain in post until a new HEO role was advertised and filled. It stated that it would be open to him to apply for the post. At this stage the Worker had been in post for seven years and had the expectation that he would be successful in any competition.

From 31^stAugust 2022, he was unilaterally returned to his original post of Mediator/Invigilator after 7 years and six months in the role of the Development Officer (Private). The Union on behalf of the Worker submitted that he should have automatically be regraded after that long in the post, and they referenced some HSE cases and Local Authority cases where this had happened. The Worker is seeking that he be restored to a Development Officer or equivalent, with the Employer, and that he receives a once of payment off €1,000.

The Employer submitted that in this case the issue of regrading does not arise. Both roles are at the same level and the reversion back to his original role of Mediator did not result in any loss of income. It was their submission that, the Worker knew at all times that he was covering a colleagues maternity leave and career break and would eventually be returning to his substantive post. The Worker while covering the Development Officer (Private) position received the consolidated rate of pay even though he did not work Saturday or Sundays.

The Worker was always aware that the fixed term contracts he received were directly linked to the maternity leave and career break of one of his colleagues. The position of Mediator is at the same level as that of Development Officer(private) which no longer exists. There has been no reduction in the Worker’s terms and conditions of employment. Since the Worker returned to the Mediator position, he has not been required to work weekends, in recognition of the fact that he has not been required to do so for a number of years. However, he still receives the consolidated rate of pay. The Employer is happy to engage with the Worker in the terms set out by the Adjudication Officer.

Decision

The Court having listened carefully to the submissions of the parties does not uphold the Worker’s complaint. The Worker has sustained no loss of earnings. It is not for the Court to decided what roles the Employer should or should not have in its organisation. While the Worker may have had expectations, the correspondence he received from the Employer was at all times clear that he would revert to his substantive post. The Decision of the Adjudication officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
14 September 2023	Deputy Chairman