FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Recommendation.
BACKGROUND:
2. The case before the Court concerns the Employer's and the Claimant's appeal of an Adjudication Officer's Recommendation. The dispute relates specifically to the Claimant's contention that he was treated in an inequitable manner by his Employer as a result of him not being afforded the opportunity to compete for a more senior position which was undertaken by a colleague of his. Furthermore, the Claimant maintains that the position was subsequently regularised without having been the subject of an open competition and interview process. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th May, 2017 the Rights Commissioner issued her Recommendation as follows:
"I recommend that the Complainant be compensated in the amount of €5,000.00 for the manner in which he was treated and the manner in which he was allowed to perceive that he had been treated".
The Employer and the Claimant appealed the Adjudication Officer'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 27th July, 2017.
DECISION:
This is a joint appeal by both the Claimant and the Employer against the Recommendation of an Adjudication Officer in a claim under the Industrial Relations Act, 1969.
The Claimant submitted a complaint under the Act to the Workplace Relations Commission on 23rdAugust 2016.
The complaint relates to the manner in which the HSE invited two of the Claimant’s colleagues to “act up” into Assistant National Director grades in 2010, without going through any formal process. At the time the Claimant was a General Manager within a highly specialised department of the organisation, ICT.
Furthermore, as the two “acting up” posts were subsequently regularised under the Haddington Road Agreement without being the subject of an open competition and interview process, the manner in which the individuals concerned were ultimately regularised was also in dispute.
Summary of the Claimant’s Case
Ms Mary Paula Guinness, B.L. instructed by O’Callaghan Daly Solicitors, on behalf of the Claimant submitted that the HSE’s actions were in breach of the HSE Code of Governance, Circulars and Codes of Practice. She submitted that as a result of the lack of transparency and compliance with normal procedures the Claimant’s career path and progression has been affected. Consequently, the Claimant was at a significant financial loss to date and for the future, therefore monetary compensation was sought on behalf of the Claimant.
The Claimant submitted a grievance under HSE Grievance Procedures on 16thDecember 2014
Ms Guinness submitted that the actions of the HSE in 2010 were in breach of the following:-
- a)Code of Practice Emergency Short Term Appointments to Positions in the Health Service Executive 2017
b)The Policy on Acting Up in a Higher Capacity 2010
c)Codes of Practice Emergency Short Term Appointments to Positions in the HSE 2007
d)Codes of Practice Atypical Appointment in Civil Service and Certain Public Bodies 2017
She submitted that the manner in which the two individuals in question were regularised by the HSE was in breach of Circular 017/2013“Regularisation of acting posts in conjunction with the introduction of new arrangements for the short term filling of posts”.
Summary of the Respondent’s Position
Mr John Kelly, Byrne Wallace Solicitors, on behalf of the HSE stated that there were essentially two principal reasons why the appeal was made. The Decision had the potential to undermine the integrity of the Haddington Road Agreement and in particular the “Sectoral Agreement” for the Health Services. The latter included an agreement to regularise “long term acting” appointments for employees who accepted increased responsibilities and higher duties over a number of years, for no remuneration. This agreement was successful in maintaining industrial stability within the most essential of services. On the basis of this Agreement, the HSE was prepared to agree terms which provided (amongst other things) for regularisation in return for industrial peace and the other productivity measures contained within the HRA.
Secondly, the HSE raised concerns regarding the compensation awarded by the Adjudication Officer as an award of this nature could expose the HSE to multiple claims for being denied a promotional opportunity by virtue of “regularisation” of another employee.
Mr Kelly contended that no "appointments" within the meaning of the documents referred to by the Claimant were actually made during the relevant period. Furthermore, he contended that the Haddington Road Agreement is clear that where, a collective agreement is reached, it is to have effect “as opposedtoany other terms which may be set out in legislation, circular, or regulation designed toachieve the payroll and pension savings identified by Government.
Mr Kelly said that as a consequence of the financial downturn, the HSE suffered targeted reductions in employee numbers including management/administration positions which encompass ICT posts. Recruitment came to a virtual standstill on 30 March 2009, when the HSE issued a Circular Implementation of Savings Measures on Public Service Numbers – Moratorium on Recruitment and Promotion in the Public service Circular 010/2009.As the financial crisis continued and intensified, a further circular was issued on 15 May 2009, Circular 015/2009 which made it expressly clear that:
- When vacancies arise, work and/or staff should be reallocated,orreorganised both within and across institutions and pillars and the budget for that staff member will also be reallocated. Key focus in implementing the moratorium in the health services will be on the redeploymentorrestructuring of existing staff and work with a resulting reduction in numbers employed."
Furthermore it rescinded the authority of managers to sanction the payment of acting allowances or additional payment for additional responsibilities for the duration of the moratorium.
Mr Kelly said that the Haddington Road Agreement has the status of a collective agreement to which the HSE is bound and committed to implement its terms, including Circular 017/2013,“Regularisation of acting posts in conjunction with the introduction of new arrangements for the short term filling of posts”.
Conclusions of the Court
It was clarified for the Court that in 2010 due to the absence on administrative leave of the ICT National Director, the Assistant National Director in charge of Corporate Affairs and ERP systems was assigned the Director’s duties. As a result, he assigned those two functions to the two General Managers in question, the most senior persons in charge of the roles previously. Following which, the two General Managers carried out those extra Assistant National Director duties without any allowance or additional remuneration until 2014, when their posts were regularised under the provisions of Circular 017/2013.
The Court notes that at the time the Claimant did not raise any concerns, challenges or issues to the reallocation of duties, the first time any issue was raised was on 16thDecember 2014, following the regularisation of the posts.
The Court is satisfied that at the relevant time no ‘appointments’ were made within the relevant codes of practices and secondly no ‘acting up’ appointments were made within the definition contained in“The Policy on Acting Up in a Higher Capacity 2010”.Furthermore,the Court is satisfied that the HSE acted in accordance with Clause 4.2 of the 2010 Policy and sub-divided the tasks performed by the previous post holder and shared those task between the two most senior positions appropriate to their current grades and levels of responsibilities.Accordingly, the Court is satisfied that firstly, there was no breach of the HSE Code of Governance, Circulars and Codes of Practice and secondly, the actions of the HSE in reassigning the duties to the two General Managers in question was in line with the HSE policy and was reasonable in the circumstances.
The Court is of the view that Circular 017/2013 on regularisation of acting posts, coupled with the Sectoral Agreement, both of which were provided under the terms of the Haddington Road Agreement are collective agreements between the Public Sector (including HSE) and the Unions concerned and are not matters for the Court. The Court can find no grounds to find that HSE acted contrary to the terms of those collective agreements.
On that basis the Court does not find in favour of the Claimant’s appeal. The Court finds in favour of the HSE’s position and upholds its appeal.
The Adjudication Officer’s Recommendation is overturned accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9 August 2017______________________
LSDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.