ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00008038
Anonymised Parties Nursing Administrator Health Service provider Representatives Psychiatric Nurses Association Health Service provider representatives.
Complaint(s):
ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00010568-001 31/03/2017 Date of Adjudication Hearing: 11/09/2017 Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to dispute
Background:
In 1989, the respondent commenced employment with the respondent as a nurse, was promoted to Clinical Nurse Manager 1, in 2001, and was subsequently upgraded to Clinical Manager 2. She secured a further promotion in her appointment to a temporary position of Assistant Director of Nursing (ADON) in April 2014. The contract for this position was devoid of an end date. The complainant contends that she was assured by her then (now retired) line manager, the Area Director of Nursing, in 2014, that she would remain in the temporary position indefinitely. In April 2016, the respondent informed her that the positon which she had held in a temporary capacity, since April 2014 would now fall to be filled in a permanent capacity via a competition. The complainant did not apply for the permanent post believing the assurances given to her by her then line manager in 2014 that she would hold an ADON post indefinitely. In addition she believed herself ineligible for the positon as advertised in that it specified that a FETAC level 8 qualification was a pre-requisite for appointment. The complainant was notified on the 8/8/16 that a permanent appointment had been made and that she would revert to her previous post as CNM 11 on 4/9/16. The complainant objected to this decision. The respondent reaffirmed this decision in September 2016 and advised that payment of the ADON salary would cease on 26/9/16 and that she would revert to the salary of CNM2. Her union requested that she retain the temporary position. The respondent declined to accept this request. The matter was referred to the Conciliation Services of the WRC on 8/11/16. A conciliation meeting was held on 21/3/17. No resolution emerged. The matter was referred for adjudication on 31/3/17.
Summary of Complainant’s Case:
The complainant has been working in the allocations office, a core function of the contested post since 2008. She has performed other elements of the ADON post. She enjoyed the confidence of her superiors in her ability to perform the duties of the post. She was issued with a temporary contract for the post of ADON with no end date in March 2014. At the same time she was assured by the then Area Director of Nursing that she would remain in the ADON post indefinitely (retirement was and is an option for her within a few years.) The post of Assistant Director of Nursing was advertised as a permanent appointment in 2016. The claimant did not apply for the post, believing the assurances given to her by the Area Director of Nursing in 2014. She also believed herself to be ineligible as she did not meet one of the requirements for appointment- a FETAC level 8 qualification. Both parties agreed that no such requirement existed in 2014 when she was appointed to the ADON post and only came into being in 2015. She stated that while she did consider using the appeals and had completed the necessary documentation, ultimately her decision not to do so was influenced by what she perceived to be an absence of support on the part of the Area Director of Nursing’s support for her to use the appeals process. She stated that she had no recollection of any discussions about any change in the tenure of the post before April 2016. Her union representative advised that the termination of her temporary contract results in a loss to her of €9000-€10000 per annum which loss will be reflected in her pension. She seeks to retain the post of Assistant Director of Nursing on a red circled basis.
Summary of Respondent’s Case:
The respondent stated that their inability to meet her request for retention of the temporary ADON post is down to the requirements of circular letters, protocols and procedures within their organisation and the requirement for a competitive selection process. They cited the Haddington Rd. Agreement which set out the process for conversion from acting to permanent appointments. They referred to C/L 017/2013 which states that to be eligible for regularisation ( conversion from temporary to permanent status), an employee must have acted in a continuous basis for at least 2 years as at 31/12/2012. As she was only appointed on 13/4/14, she was ineligible to secure permanency via that route. A second route to permanency was publicised to departments in a memo dated 13/11/2014. This was 8 months following her appointment; this memo asked department heads to provide information and data on employees in the same circumstances as those of the claimant and asked that information on same be forwarded 27/11/2014. There was no evidence that same was furnished. This second route entailed a competition for appointment In September 2015, the ADON post in which the claimant was employed was submitted to the relevant authority for filling in a permanent capacity. The post was advertised in April 2016. Interviews were held in May 2016. The successful candidate took up his appointment as ADON in September 2016. The fact that a requirement for a Level 8 qualification only existed from 2015 – at a date subsequent to the claimant’s appointment was not disputed by the respondent. The respondent disassociated themselves from the alleged assurances given to the claimant in 2014. The respondent disputed that they had discouraged the complainant from using the appeals process The respondent, upon questioning, advised that open-ended temporary contracts no longer issued and had been replaced since late 2014 with fixed-purpose contracts or contracts which specified an end date or the event which could terminate the contract. Neither could the respondent indicate the number of employees in possession of these open-ended temporary contract held by the claimant; all they could state was that they couldn’t be sure that they no longer existed. They stated that the claimant declined to apply for the permanent positon advertised in April 2016, chose not to use the appeals process and that their processes and agreements constrained them from meeting her request.
Findings and Conclusions:
I find that the claimant has performed the functions of the ADON post for a period preceding her appointment in 2014. The contract for the temporary post to which she was appointed had no end date nor any detail concerning a process which could terminate the contract. The respondent has corrected its processes and contracts so no ambiguity can arise for an employee in the future as to the duration of a contract. The claimant’s expectation to hold the position was not entirely unreasonable in all of the circumstances. No evidence was furnished to illustrate that there was a significant number of employees in possession of such open – ended contracts. The requirement for a Level 8 qualification for an appointment the post only arose in 2015. However the claimant chose not to apply for the post in April 2016. Though the claimant was poised to use the appeals process, she chose not to do so. That process had the potential to deliver the post for her. Decision: Recommendation Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.] I recommend that the claimant be paid the sum of €5000 in consideration of the loss sustained by her in circumstances where the respondent’s processes contributed to the uncertainty surrounding her tenure of the post and to her expectation that she would hold the ADON post until retirement. Date: 14.11.17 Key Words: Temporary appointment; processes for appointment to same; failure to use an appeals process