LCR22960

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044089 (CA-00054737 IR-SC-00001058)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 23 January 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on 3 May 2024.

RECOMMENDATION:

This matter comes before the Court as an appeal of a decision of an Adjudication Officer’s Recommendation given under Section 13 of the Industrial Relations Act, 1969.

The Worker concerned, who is not employed by the respondent local authority but is employed in the sector by another local authority, was successful in being placed on a panel of persons considered suitable for appointment as a Director of Service (DOS) which was compiled by the Public Appointments Service (PAS) in 2021. The statutory mechanism for permanent appointment of a person to the role of DOS in a Local Authority requires (a) the formation of a panel by the PAS of persons considered suitable for the role of DOS and (b) the making of a statutory request by a local authority CEO to the PAS for a recommendation of a person to fill a permanent vacancy when the CEO has decided that a vacancy exists which should be filled on a permanent basis.

The Worker submits that the respondent local authority has appointed at least two persons to fill the role of DOS on an ‘acting’ / temporary basis since the formation of the panel by the PAS but has made only one statutory request to the PAS for a recommendation of a person in that period. Two persons remain filling the role of DOS in the authority on an ‘acting’ / temporary basis at the date of the hearing of the Court.

The Worker contends that the respondent authority should have appointed him on a permanent basis during the lifetime of the panel rather than appointing persons to fill the role of DOS on an ‘acting’ / temporary basis. The Respondent rejects the claim of the Worker in this regard.

The panel in question expired in November 2023, and consequently no appointments to a permanent position from that panel can be made by the authority since that date. 

The Worker seeks his appointment to the role of DOS in the respondent authority as a means of resolving the within trade dispute. In the alternative, he seeks a transfer to the authority from his current employer authority and his subsequent appointment to one of the two ‘acting’ / temporary positions as DOS in the authority.

The parties made submissions to the Court addressing the question of whether the matter before the Court amounted to a trade dispute within the meaning of the statute and whether the parties could be regarded as an employer or Worker within the meaning of the statute. The Court decided that the practicalities of the matter before it should be considered before addressing the question of statutory interpretation of industrial relations legislation was addressed.

At the hearing of the Court, it became clear that both parties accepted that the first remedy sought by the Worker is statutorily prohibited. The panel formed in 2021 has expired and no means are available to the respondent authority to appoint a person to a permanent role of DOS in the absence of a panel held by PAS.

In the view of the Court the proposition that the Worker would be transferred to the respondent authority and that a person currently holding an ‘acting’ / temporary role as a DOS would be displaced so that the Worker could be appointed to fill the resulting ‘acting’ / temporary vacancy is neither implementable nor reasonable.

In all the circumstances, the Court considers that placement on a PAS panel of persons suitable for appointment as a DOS is not an undertaking to appoint the person the role of DOS. The decision to fill a vacancy on a permanent basis rests with the CEO of the relevant authority. In this case no decision to fill a vacancy on a permanent basis was made by the CEO of the respondent authority during the lifetime of the panel such that the PAS would have recommended the Worker to the CEO.

In all the circumstances, the Court recommends that the parties accept that the Worker has been unfortunate in the manner in which events unfolded since the formation of a panel by the PAS in 2021, but that no element of improper operation of the statutorily based mechanisms of appointment has occurred.

In all the circumstances, the Court does not recommend concession of the Worker’s claim.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
AR	______________________
09 May 2024	Chairman

NOTE

Enquiries concerning this Recommendation  should be addressed to Aidan Ralph, Court Secretary.