ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008543

Parties:

Complaint(s):

Date of Adjudication Hearing:

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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).

Background:

The claimant was appointed to the position of Interim Director of Nursing(DoN) Skibereen/Schull, Community Nursing Unit on December 1st 2014. The specific purpose of this appointment was to fill a vacancy on an interim basis which was created when the when the incumbent DoN post retired.

The DoN post was filled through confined competition from within the HSE when the claimant applied. The claimant was placed first on the panel of successful candidates. The claimants substantive post is that of Staff Nurse.

In Mid December 2016 the claimant was advised by co-workers that the interim General Manager was being reassigned to the position of Don, the position the claimant currently held which was also the position the interim General Manager previously held. On hearing this the claimant contacted the HSE HR department seeking clarification on the matter and was advised to contact the Head of Social Care, Community Health Organisation and was informed that this arrangement had been agreed between the former interim DoN and Chief Officer CHO Area 4.

The claimant met with the Head of Social Care, CHO who suggested the claimant revert to her previous role that of interim CNM2 which the claimant declined because she was not in a position to contemplate another management role and did not feel it would be right to participate in perpetuating this unfair practice.

The claimant handed over management of the units in February 2017 and felt the handover was hostile on the part of the incoming DoN. The claimant was upset during and following the handover and felt humiliated and intimidated subsequently the claimant went on prolonged sick leave from 13th February 2017 to 30th April 2017 when she returned to work in another Hospital.

The Union would argue that the claimant had an entitlement to continue in the post on an interim basis until the post was either filled permanently or suppressed. The respondent did not adhere to the appointments and code of practice in relation to positions in Public and Civil Service. As a result the claimant was not afforded equality of opportunity and was disadvantaged when removed from the post and that the previous interim DoN was given preferential treatment. The union would also argue that the domino effect of this type of practice by the respondent could have long term and significant negative implications and that the DoN position should have been filled by open competition. It was submitted that the claimant has suffered financially, emotionally, professionally and her career prospects have been damaged irrevocably by the actions of the respondent. The claimant has been significantly disadvantaged by the actions of the respondent and felt she had no option but to travel to another institution to work at the lowest nursing grade.

The respondent submitted that in 2012 the DoN positions of both Skibereen and Schull Community Hospitals were amalgamated on an interim basis following the retirement of the previous DoN's for both these facilities.

As negotiations were ongoing nationally at that time in relation to Nurse Management Structures across the HSE, the post continued to be filled on an interim basis pending the conclusion of the national negotiations between the HSE and nursing trade unions which also includes the claimants union. The national negotiations between the HSE and nursing trade unions has not yet concluded.

The claimant commenced in the interim DoN position to facilitate the then post holder to take up the role of Interim General Manager for Community Hospitals in the Cork area, as a result the CNM2 position held by the claimant at that time on an acting basis was also backfilled on an acting basis to facilitate the claimants commencement in the interim DoN position.

The respondent would also argue the circumstances forming the claimants appointment to the position of interim DoN no longer existed as a result of the previous interim DoN no longer continuing as interim General Manager, as he had requested to return to the previous position he held, ie; the position the claimant currently held.

The respondent also argued that it was reasonable and fair in all the circumstances that both employees involved in this matter would revert to the positions they previously held ie the interim General Manager would revert to interim DoN and the claimant would revert from interim DoN to acting CNM.

The claimant declined this offer and the respondent facilitated a transfer to another Hospital as a Senior Staff Nurse.

Findings:

Both parties made written and verbal submissions at the hearing.

Having examined the evidence as presented I have formed the following opinion.

I find in this instance that the application of long term "interim " or "acting" positions is not in the best interests of the employer or employee as it can create false expectations and uncertainty in relation to career progression. I also understand that the needs and staff requirements of the respondent in this instance also have to be catered for.

By its definition the word "interim" means temporary, short term, intervening or provisional.

Baring the above in mind, both the claimant and the interim General Manager occupied interim positions above their substantive contracts of employment. No employee has a right of entitlement to an interim position. If an employee voluntarily relinquishes an interim position, that employee should not have the right to seek instalment in another interim position,(whether or not they previously held that position on an interim basis), to the detriment of the individual who obtained and occupies that position through a fair and transparent interview process, but rather the individual should in my opinion revert back to their substantive contract of employment. If on the other hand the interim position was filled on a permanent basis, then a step down approach through interim positions would appear the most logical.

I find the manner in which the claimant became aware of the situation lacked any professional courtesy or consideration and as a result the claimant did suffer personally and professionally.

I find the claimant should have reverted to her previous interim position, albeit under protest and lodged a grievance complaint in relation to same.

I find the respondent allowed and catered for the Interim General Manager to pick and choose his position of appointment and as such did not comply with the terms and conditions relating to the code of practice governing appointments within the public and civil service.    

Decision:

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

Based on the findings I recommend that the claimant should continue to receive the same entitlements ( grade and pay) she had as Interim Director of Nursing on a red circle basis for a period of 2 years. However should the claimant be successful applying for and obtaining a similar post the grade and rate for that position shall take precedence at that stage.

Dated: 1.2.18

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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