FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY IRISH NURSES' AND MIDWIVES' ORGANISATION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. An appeal of a Rights Commissioner’s Recommendation r-127973-ir-12/RG.
BACKGROUND:
2. The Claimant said her long term acting-up arrangement was terminated because she raised concerns regarding her working environment.
- The Employer said that the Claimant was reverted back to her substantive post in line with the HSE acting-up policy and strenuously deny she was moved for raising any concerns.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 4thJuly 2013 the Rights Commissioner issued the following Recommendation:-
- The Claimant has been in an Acting Up Clinical Nurse Specialist post since 30thNovember 2009. She has been paid the Acting Up allowance in accordance with the Department of Health Circular 10/71 and also in accordance with the HSE Policy on Acting Up in a Higher Capacity of January 2010.
There was no correspondences from either party presented at the hearing or post the hearing as requested which would clearly state what the basis of the Claimant’s acting up position was when she was appointed to the position on 30thNovember 2009.
Both parties confirmed to the hearing that the Claimant is not and cannot be comprehended by the national talks, still on-going, in relation to employees acting up for long periods of time.
The provisions of the HSE Policy on Acting Up in a Higher Capacity of January 2010 does provide for continuous reviews of all acting up positions and I accept that the employer was entitled to review the Claimant’s acting up position in line with the Policy.
I could find no basis for any link between a complaint made by the Claimant in February 2012 against another employee. Similarly with the Complaint made in July 2012. I was not made aware of these complaints but likewise there was no evidence, circumstantial or otherwise, to substantiate an allegation that the decision to terminate the Claimants Acting Up Position was as a direct result of her complaints.
The Claimant is seeking that she be returned to a position of Acting Up. However there is no substantive post and the Employer has confirmed this. Therefore I cannot appoint the Claimant to an Acting Up post that no longer exists. To do so would breach the HSE Policy on Acting Up in a Higher Capacity.
Section 14 of the HSE Policy on Acting Up in a Higher Capacity of January 2010 provides as follows: Terminating Acting Up Arrangements. – The purpose and expected duration of the acting-up arrangement should be clearly communicated to the employee and documented on the employee’s file and s/he should be clearly informed of the circumstances which will bring it to an end. The HSE, as Employer, did not follow their own Policy in relation to the Claimant’s appointment in Acting Up capacity on 30thNovember 2009.
- The Claimant has been in an Acting Up Clinical Nurse Specialist post since 30thNovember 2009. She has been paid the Acting Up allowance in accordance with the Department of Health Circular 10/71 and also in accordance with the HSE Policy on Acting Up in a Higher Capacity of January 2010.
I therefore recommend that the Employer, the HSE, should pay the Claimant compensation of €1500.00 (one thousand five hundred euro) within six weeks of the date of this Recommendation.
On the 11th July 2013 the Claimant appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 11th October 2013.
WORKER’S ARGUMENTS:
3. 1. There had been a deterioration in the working relationship between the Claimant and the Director of Nursing following the Claimant’s submission of a grievance in relation to the alleged behaviour of a senior colleague on a particular occasion.
2. This deterioration was evident by the sudden concern by the Director of Nursing that the Claimant should not use the title Acting Clinical Nurse Specialist despite the fact that she had used that title for a considerable period of time without remark, and indeed this was the position which was advertised and for which she applied, and was appointed to.
3. The Claimant was advised not to progress locally the regularisation of her acting-up position due to national talks concerning the regularisation of long term actors.
EMPLOYER’S ARGUMENTS:
4. 1. Remuneration in respect of persons acting up in a higher capacity is governed by the terms of the Department of Health Circular No. 10/71. This Circular provides, amongst other things, that any person appointed to act up in a higher capacity is entitled to receive an additional monetary allowance.
2. The Clinical Nurse Specialist post which was vacated by resignation in 2008 was advertised. No suitably qualified candidates applied and rather than lose the post it was advertised on an acting-up basis. The Claimant was successful.
3. The post was re-advertised and filled on a permanent basis in 2009. In line with the HSE Policy the Claimant was reverted back to her substantive post.
DECISION:
The Court has carefully considered the submissions of both parties to this appeal.
The Court finds that the Claimant was unfairly treated by the HSE and should be reinstated to the Acting Clinical Nurse Specialist CNM2 grade without interruption in service. The Court further finds that the Claimant’s salary at that grade should be retrospectively restored to her.
In addition, the Court finds that, in the event that the Claimant’s post is no longer required, the HSE should redeploy her to other duties within the Hospital, at the Specialist/CNM2 grade or the CNM2 grade, in accordance with the provisions of the Haddington Road Agreement.
Finally, the Court finds that the terms of the agreement relating to the regularisation of staff in acting positions should be applied to the Claimant.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
4th November, 2013.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.