Complainant

Respondent

Anonymised Parties

A Nurse

A Health Provider

Representatives

Psychiatric Nurses    Association

HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00009853-001

22/02/2017

The respondent employs the complainant as a CNM2. He   undertook a two year acting post (per   respondent or for the duration of the secondment per complainant) as ADON   from 21^st of July 2014. He was instructed to revert to his   substantive post in July 2016. The dispute concerns the fact that the cover   period/acting requirement was extended for a further two years and that the   respondent decided to conduct a new recruitment process to cover the   additional period. The complainant alleges that he was unfairly removed from   the post in breach of the actual arrangement entered into. The matter has   been the subject of the internal grievance procedure (stage 1-3). The parties   made written and oral submission to the hearing.

The complainant submits that he was offered an ADON post   in July 2014 to cover for the absence of the permanent ADON during a   secondment until her return. He was made aware of a campaign to fill two ADON   positions November 2015 one of which was the one he was fulfilling. In May   2016 a colleague informed him that he had been offered the disputed position.   The complainant was instructed to revert to his substantive post in July   2016. The complainant lodged a formal grievance with the respondent (noted   that the time frames provided were not adhered to and that it took >180   days to complete the internal process) and the matter was considered under   stages 1-3 thereof and subsequently the resulting dispute was referred to the   WRC. The stage 3 adjudication officer upheld the grievance that the   complainant was unfairly removed from his position but felt that it was   unrealistic to reinstate him due the time-lapse and change in eligibility   criteria since 2014. The complainant petitions for his reinstatement to the   position for the duration of the secondment.

The respondent submitted an application to its national   recruitment services in July 2014 for a temporary replacement for a permanent   ADON who was seconded to a project for a two-year period. As there were no   interested candidates on the existing panel the complainant was offered the   position. The permanent ADON was contacted in November 2015 to ascertain her   plans in respect of her return to her post and informed that she intended to   extend her secondment by a further two years. A recruitment process was   initiated to fill that post for a further two years and one other permanent   post in line with HR Circular 17/2013. The process was delayed to facilitate   the completion of the initial temporary replacement. The complainant was   informed that the temporary contractual arrangement would cease at 21^st   of July 2016 and that he would then revert to his substantive post. The matter became the subject of the   grievance process thereafter and it was initially found that the respondent   had fulfilled its contractual obligation to the complainant and discharged   its duty under the code of practice for recruitment. In the event the final stage   upheld the complaint but noted that it would be impractical to re-instate the   complainant in the role in view of the eligibility criteria extant. It proposed/recommended   a support plan for assisting him to get the required qualification and   favourable consideration in the event of future vacancy. This was not   acceptable to the complainant but is still on offer. The respondent was   obliged to comply with the code and is prepared to enter a mediation process   to restore/ameliorate the working relationship.

I find that the conclusions arrived at through the   grievance procedure were fair and reasonable insofar as they vindicate the   complainant. However, I also note that there was a failure to properly   process the temporary appointment in accordance with the respondent’s own   code in the matter. It is acknowledged that the complainant has been   disadvantaged thereby however I do not feel that the remedy proposed goes far   enough in ameliorating the situation for the complainant.

That said it is not the role of an adjudicator of the WRC   to dictate how a respondent should manage its business and I acknowledge the   difficulties that could arise in respect of the complainant’s reinstatement.

I recommend that the parties should accept and implement   the recommendations set out in the Stage 3 Grievance Report at 2^nd   of February 2017 and that in addition the respondent should pay the   complainant compensation in the amount of €10,000 (say ten thousand euro) in   full and final settlement of all/any issues arising without precedent.