ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00012940

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	Health Service Provider

Complaint(s):

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-00016692-001	09/01/2018

Date of Adjudication Hearing: 21/08/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The union set out a chronology of the claimant’s career history to date and the extent of her post graduate educational achievements.The claimant commenced as an Acting ADOPHN with the respondent in August 2011 .The claimant was flexible in the role and it was submitted that she had cross covered to accommodate the respondent in different locations and was responsible for the rolling out of several new initiatives.The claimant had sought to have her post regularised since 2014 but was advised that she did not meet the criteria for regularisation owing to time frames.

It was submitted that by expecting the claimant to act in a post for a period in excess of 12 months , the respondent was in breach of Circular 17/2013 where it was held that temporary appointments extending beyond 12 months should only arise on an exceptional basis. In the instant case the claimant was now acting in her promotional post for 7 years.It was submitted that had the claimant been assigned a fixed term contract she would have acquired rights to a contract of indefinite duration 3 years ago.

Summary of Respondent’s Case:

The respondent did not dispute any of the submissions made by the union on behalf of the claimant and could offer no plausible explanation as to why the post remains unfilled.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

I have reviewed the evidence presented at the hearing and I accept the union’s contention that the respondent was in breach of the principles regarding temporary appointments set out in circular 17/2013.I note that no explanation could be advanced for the delay in filling the post.I further accept the union’s contention that the claimant would have acquired rights to a CID if she had been engaged on a fixed term contract.

In all of the circumstances, I am recommending in full and final settlement of this dispute that the claimant be regularised as a permanent ADOPHN with immediate effect and that she be paid a compensatory sum of €3,000 for the respondent’s tardiness in filling the substantive post. This recommendation is based on the unique circumstances of this dispute and should not be invoked or relied upon in any other forum.

Dated: 31st August 2018.

Workplace Relations Commission Adjudication Officer: Emer O'Shea