FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Regularisation
BACKGROUND:
2. The issue in dispute concerns a claim by IMPACT on behalf of one individual and involves an appeal against the decision of the HSE that the Claimant was not regularised. The claimant had been acting in the position of Acting Director of Nursing (ADN) since 2009 when one of the then two existing ADNs retired and the other was out on sick leave. She took on both roles on an interim basis as AND for Health Promotion. The Claimant applied to the HSE for regularisation in September 2013. The HSE outlined that they are satisfied that this particular individual does not meet the criteria.
This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 13th August 2014, in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 1st October, 2014.
UNION'S ARGUMENTS:
3.1.Management did not inform the Claimant that the position she held on an interim
basis had been suppressed since 2010.
2.Management was well aware that the Claimant had been appointed to act as
Interim AND she was doing all the work and carrying all the responsibility
required of the position.
MANAGEMENT'S ARGUMENTS:
4. 1. Management is satisfied that the Claimant does not meet the criteria required for regularisation as set out in the provisions of HSE HR Circular 017/2013.
2. Management is also satisfied that the Claimant has not been carrying out the full responsibility of the AND position. The role being carried out by the Claimant is that of National Lead for Health Promotion. It does not hold the level of responsibility attaching to a post of AND.
3. There is no vacant position at AND level in this Division and consequently no post fails to be filled.
RECOMMENDATION:
The Court notes that it is agreed between the parties that this dispute has come before it under the terms of the Clause 5.1 of the Public Service Stability Agreement 2013-2016 (“Haddington Road Agreement”) and the Decision of the Court is binding on the parties.
The dispute before the Court concerns a claim by IMPACT on behalf of an employee that she should be regularised in her position in accordance with the provision of HSE HR Circular 017/2013, dated 15thOctober 2013 which was implemented in accordance with the provisions of the Haddington Road Agreement, Appendix 7(4)“Regularisation of long term actors”.
The Circular states,inter alia, that the substantive post to be filled must be vacant and that any post for which regularisation is proposed must have been acted in on a continuous basis for at least two years at 31stDecember 2012, and the acting arrangement must have continued since that date.
The Claimant applied for regularisation on 16thSeptember 2013 stating that she had been in the post of Interim Assistant National Director for Health Promotion since March 2010. The HSE declined her application on the basis that she did not meet the criteria specified in Circular 017/2013 as she was not filling a vacant Assistant National Director role; the scope of her role had reduced since 13thDecember 2010 when the composition of the Health Promotion function was restructured and the role of Assistant National Director within the function was suppressed; and this information was communicated to her by the Ms. C, Assistant National Director/ National Lead for Acute Hospital Services, on 3rdDecember 2010.
The Union on behalf of the Claimant stated that she had been acting for a period of in excess of two years by 31stDecember 2013 as she took over from two Assistant National Directors, one of whom was assigned to other duties in February 2010, the second (Ms. M) was on sick leave in March 2010 and eventually retired on ill health grounds in July 2010. The Union stated that at no point prior to the Claimant’s application for regularisation was the Claimant (or the Union) informed that the Assistant National Director post in the Health Promotion function had been suppressed.
Having examined the oral and written submissions of both parties the Court notes that with effect from March 2010 there is no dispute that Claimant was covering for Ms. M who out on sick leave. The Court notes that by email dated 13thAugust 2010 Ms. C, Assistant National Director/ National Lead for Acute Hospital Services, informed her colleagues that due to the retirement of Ms. M the Claimant“will continue as the interim AND(Assistant National Director)for Health Promotion”.
It is clear from the correspondence submitted that Ms. C met with the Claimant on 13thDecember 2010 to inform her of the new developments taking place in the Health Promotion function where the reporting arrangement at national level would from that date forward be to the Assistant National Director of Public Health, Dr. K. and that Regional Health Promotion Departments were transferring to the HSE regions with immediate effect.
It is clear from the email sent by the Claimant to all Health Promotion Managers and Staff dated 13thDecember 2010 announcing this decision that she was seeking clarification in relation to roles and responsibilities.
Based on all the information supplied to the Court, it is satisfied that the Claimant was never informed that the post she was occupying had been suppressed until October 2013 after she sought to be regularised. Furthermore, the Court notes that following his appointment the Claimant was advised by Dr. K that she should continue to carry out the duties she held heretofore.
The Court also notes that with the Voluntary Redundancy Scheme and Early Retirement Scheme (VER Schemes) to take effect in early 2011, the Union was simultaneously seeking clarification that the remaining Assistant National Director post for the Health Promotion function would be retained. On 16thDecember 2010 the Union were informed by management that a process was in place,led bythe Claimant, to agree a standardised approach to Health Promotion across the Regions. The Union was informed of the changes which emerged resulting from the VER Schemes, which would result in a reduction in the number of Assistant National Directors within the Intellectual Services Directorate (ISD), where“There are currently 15 AND posts in the ISD. Following the VER process this will reduce to 8”, however, no specific details were supplied to the Union and it was not informed of the suppression of the interim post which the Claimant had taken over in March 2010.
In all the circumstances of this case the Court concludes that the Claimant had valid reason to believe that she occupied the role of Interim Assistant National Director following the retirement on ill health grounds of Ms. M in July 2010; that that position continued despite the restructuring which took place in the Health Promotion function and that she was accordingly occupying a vacant position when she sought to be regularised in September 2013. Therefore the Court is of the view that the Claimant meets the criteria laid down in HSE HR Circular 017/2013 and she should be regularised as an Assistant National Director accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
14 October, 2014Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Clodagh O'Reilly, Court Secretary.