Worker

Employer

Anonymised Parties

A Worker

A Hospital

Representatives

SIPTU

HR Manager

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 - 00002626

14/05/2024

The worker has been employed as an Orderly/Security in the Hospital since 2005. He applied for promotion as follows- 

Temporary Post

The worker applied for an internal temporary promotional post in August 2022 and was placed 2nd on the panel. Although the post was vacant up to January 2023, he was not offered this post and it remained vacant over a significant period.

Offer of Post in June 2023 to Date

The same post was then advertised at the end of August 2022. He again applied for the post and was placed on a panel. It was his understanding that when he was offered the post in June 2023 that this was a permanent post. This was the workers understanding up to 31st July 2023 when he was to commence the role. The employer’s position is that although it was unclear at the outset whether the post was permanent or temporary, this was clarified for the worker prior to him being offered the temporary post in June 2023.

The worker raised the issue of whether the post was permanent and if he could retain his allowance if he accepted the post. He wrote to management on 12th July 2023, which included the following passage-

‘…that the person prior to myself in that role was indeed in receipt of the allowance, that person being …… and that it would be a disadvantage for that to be removed. Nonetheless I did state that I would be taking the role and I would deal with the security allowance at a later date with higher authority. You wished me well in my new role ……’

The worker then raised a formal grievance on why he was not previously appointed to the temporary role up to January 2023 and why the post offered in June 2023 was not permanent. His grievance complaints at stage 2 and stage 3 were not upheld.

The stage 2 outcome summed up the matter concisely as follows-

‘All initial communication from HR to you with the job offer on 29th June 23 was for the position of “Head Porter/Security”. It did not mention Temporary, which is what hospital management were advertising at that time. This was an error on behalf of the HR team. The reason hospital management advertised for a Temporary Head Porter was that at the time of advertisement there was only a Temporary Position vacant so Hospital management could not have advertised for a Permanent Head Porter vacancy’.

At the adjudication hearing, the HR Manager accepted that the initial offer did not state whether a permanent or temporary offer was being made although this was later clarified for the worker.

The issue of an earlier appointment to the temporary post was not addressed in stage 2 or stage 3. The focus was solely on whether the current offer was temporary or permanent as this was the priority for the worker and management at that time.

In the end, even though the post became permanently vacant in July 2023, it was overtaken by a moratorium and was not filled. The HR Manager stated at the hearing that there is still no authority to fill the post and that this post and others across the service have been lost. The union position is that unfilled vacancies are already in dispute with no acceptance that this post or other posts have been lost.

As the workers issues were not resolved through the grievance procedure, he referred the dispute to the WRC.    

The worker outlined that he was not treated fairly throughout the promotional process. He was on a temporary panel and then shortly afterwards on a permanent panel. He raised issues with management prior to and during the grievance procedure. He is seeking to be placed into the promotional post and be paid retrospectively from June 2023. He also seeks compensation for the way he was treated throughout the promotional process. He submits that there was a lack of transparency when the post reverted from permanent to temporary despite the previous indication that it was permanent.

The employer asserts that although it was presumed there would be a permanent vacancy, this did not transpire until the end of July 2023. Up to that point, they could only fill the post temporarily and this was clarified for the worker. When the worker queried the retention of his allowance he was informed that he could not carry the allowance to the new post.

Ultimately, the moratorium overtook events and the post was not filled and there is currently no authority to fill the post.

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

It is clear that the post in question along with other posts across the service was impacted by the moratorium. This matter of unfilled posts is in dispute between management and unions. As the adjudication remit under the Industrial Relations Acts does not extend to collective issues, I am prevented from making a recommendation on whether the worker can be appointed to the promotional post. The HR Manager has asserted that the moratorium still prevents the post from being filled. Under those circumstances, I cannot recommend that the worker be appointed to the post or indeed be paid retrospectively.

I accept the worker was treated unfairly due to the circumstances that arose. He competed for the temporary post and within weeks was competing for a permanent post. It was reasonable for him to believe that the 2nd competition was for a permanent post as there was already a temporary panel in existence.

Despite being on two panels, he was not offered the post even on a temporary basis up to January 2023. He raised this issue in correspondence with management as he felt he was overlooked and despite going through two stages of the grievance procedure, this matter was never explained. It was also not explained adequately at the hearing by the managers present. As there was no explanation, it appears that he should have been appointed to the post on a temporary basis at that time.

Later, he was offered the post in June 2023. It was then clarified that this was a temporary post and not permanent. It was reasonable for him to have further concerns when his expectations of a permanent appointment were dashed.

In the end, events were overtaken by the moratorium and the offer of the post was rescinded. It is clear from the correspondence, that he raised legitimate questions and then submitted a formal grievance. Although the moratorium meant that the post could not be filled, there were opportunities to address his legitimate concerns before then. The process could have been handled in a more transparent way.

Having regard to the specific circumstances of this case, and as the adjudication service has no remit on collective disputes, I recommend that the employer pay the worker the sum of €3,000 as a goodwill gesture in full and final settlement of this matter.

Promotion Procedure