LCR21599

Circular 17/2013 provided for ‘regularisation’ of long terms acting personnel provided they met certain conditions. The relevant conditions insofar as the within matter is concerned were that (a) the person to be regularised had been ‘acting up’ and in receipt of the appropriate allowance for a period of two years at 31^stDecember 2012, or (b) in respect of persons for whom it could be demonstrated that an acting arrangement was appropriately approved and that they meet the criterion above, but that due to the moratorium and / or financial restrictions they have not been in receipt of the allowance, they would also be encompassed by the regularisation process. The circular at Paragraph 6 stipulates that ‘There must be documentary evidence deeming the individual as being in an acting position, and carrying out the full responsibility of that position’.

It is common case that the Claimant was not in receipt of an allowance until 7^thFebruary 2011 and thus was not in receipt of an allowance for a period of two years at 31^stDecember 2012.

The Claimant contends that, upon the retirement of the Hospital’s concourse manager in December 2010 she was requested and agreed to ‘act up’ in the position of concourse manager as well as continuing to carry out her previous role of concourse receptionist. In her previous role she occasionally worked weekends on a five over seven day roster. The concourse manager role was worked on a five day Monday to Friday roster prior to the retirement of the concourse manager.

The Claimant contended that with effect from 6^thDecember 2010 she carried out the full role of concourse manager and nobody else undertook any of the duties associated with the concourse manager role. She submitted documentary evidence of her taking responsibility for a payroll operation on 26^thDecember 2010, a function normally carried out by the concourse manager. She also submitted a letter from a patient services manager for whom she worked at the material time stating that she had notified that unit in December 2010 that she would not be available to work hours in that location from December 2010. She submitted that she received no allowance on taking up the ‘acting up’ role but was advised that (a) the matter would be dealt with at another time and that (b) she would be allowed to continue working weekends in the meantime as a means of financial recognition. She contends that she thereafter worked five day weeks Monday to Friday every second week and worked seven days every other week. She maintains that these arrangements applied until the formalisation of her ‘acting up’ arrangement by execution of the appropriate approval arrangements and payment of an ‘acting up’ allowance to her with effect from 7^thFebruary 2011.

The Hospital contends that upon retirement of the concourse manager the duties associated with the role were dispersed among a number of staff in much the same way as occurred when annual leave arose. The hospital submitted that (1) the Claimant did not ‘act up’ in the role with effect from 6 December, (2) that no documentary evidence of such ‘acting up’ exists, (3) that the Claimant did not work seven days every second week from 6^thDecember 2010 until 7^thFebruary 2011, and (4) she did undertake some of the duties of the concourse manager role with effect from December 2010 as did others but that she did not carry out the full responsibilities of the role.

The Court is presented with contradictory assertions by the parties as to whether the Claimant did ‘act up’ in the position with effect from 6^thDecember 2010 and whether she undertook the full responsibilities of the concourse manager role from that date. It is common case that she undertook some of the responsibilities of the concourse manager role from December 2010. It is also common case that the Claimant was not in receipt of an acting up allowance until 7^thFebruary 2011.

The Court is not asked by either party to apply a meaning to circular 17/2013 other than that stated in the circular. The Court therefore must examine the facts by reference to the circular. The Claimant did not receive an allowance until 7^thFebruary 2011 and therefore was not, as required by the circular, in receipt of an allowance for two years at 31^stDecember 2012. The circular however provides that

• 6) Persons for whom it can be demonstrated that an acting arrangement was appropriately approved and that they meet the criteria set out above, but that due to the moratorium and or/financial restrictions, they have not been in receipt of the allowance, will also be encompassed by this process. There must be documentary evidence deeming the individual as being in an acting position, and carrying out the full responsibility of that position.

In the circumstance whereby the Court is asked to apply circular 17/2013 it must be concluded that the Claimant was (a) not in receipt of the allowance for two years at 31^stDecember 2012 and (b) did not meet the criteria set out at para 6 of the circular to deal with persons who were ‘acting up’ but, for particular reasons stated in the circular, were not in receipt of the allowance. The Court therefore finds that the Claimant does not fall to be regularised at grade 5 by application of Circular 17/2013.

In coming to this conclusion the Court acknowledges the fact that the qualification criteria set out in Circular 17/2013 are clear and exact and that application of those criteria has the effect of excluding the Claimant from regularisation notwithstanding the fact that she did perform in the role whether acting up or in some other arrangement from 2011 until 2015. In that regard the Court notes that the intent of Circular 17/2013 was to bring the practice of long term acting to an end as a feature of employment in the Health Service. Clearly the implementation of that circular by the Hospital did not have the effect of bringing the long term acting of the Claimant to an end or of regularising her in her position. The Court appreciates the issues arising for the Claimant from this situation but, in the circumstances of the case as presented, is not in a position to find other than it has.

The parties should, in the view of the Court, consider engaging with a view to resolving this matter within the spirit of circular 17/2013.

Signed on behalf of the Labour Court



Kevin Foley
6 November 2017.______________________
CORChairman



NOTE

Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.