In this case (A Worker v A Local Authority ADJ-00035827), the employee had been employed since 2006, initially as a Craft Gardener and from 2007 until 2021 as a Chargehand on an acting up basis. The worker submitted that it was unfair of the employer to revert him to his previous position after almost fourteen years in an acting up position. The employer stated that it was precluded from filling permanent posts for a number of years.
The Workplace Relations Commission noted that “Precluding public bodies from filling vacancies is a common practice when straightened financial circumstances apply and, in such circumstances, it is also common practice to fill positions by way of acting up. This system of addressing vacancies is not unfair in and of itself…………..However, retaining a person who was unsuccessful in a number of substantive competitions in situ of a further six years comes across as unfair. This unfairness is further compounded when there was no disciplinary or competency-based issue with the person who was acting up during the following six years”
The Adjudicator observed that the employee was only provided with interview training prior to the 2021 recruitment competition and that the worker had provided a large degree of flexibility during his acting-up period service in a number of locations where there were staff shortages.
The Adjudicator concluded that “………not ensuring that the person in an acting-up capacity was appropriately prepared to interview for his position when it finally opened up is unfair” and recommended that the employer must ensure that interview training is automatically offered to staff members acting up who have been holding those positions for more than twelve months. It was also recommended that €2,000 was paid to the employee in question.
It should be noted that this claim was taken under the Industrial Relations Act 1969 (as amended) and a recommendation was issued from the Workplace Relations Commission. The recommendation in itself is not legally binding however if an employer does not implement the recommendation, this could be looked on unfavourably if the employee or others were to take similar claims and it was noted that the employer did not implement the previous WRC recommendation.
