ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00012708
Parties:
| Complainant | Respondent |
Anonymised Parties | Manager/Nurse | Health Service |
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-00016701-001 | 09/01/2018 |
Date of Adjudication Hearing: 14/05/2018
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance with Section 41 of the Workplace Relations Act and 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 the dispute
Background Summary:
The claimant is seeking regularisation into a position she held, namely that of Assistant Director of Midwifery. The claimant was successful in competing for the post of Acting Assistant Director of Nursing/Midwifery and occupied the post from March 27th, 2011.
In 2017 the position of Assistant Director of Nursing/Midwifery was processed through the National Recruitment Services and the successful candidate has commenced in the position with effect from January 1st, 2018. The claimants substantive contract of employment is that of Clinical Midwife Skills Facilitator.
The claimant had previously sought the post regularised under the terms of HSE HR Circular 017/2013 in 2014 but was refused on the grounds that she did not meet the criteria as set out. The terms contained within the circular came about because of negotiations between the Respondent and Trade Unions, of which the claimant is a member. The claimant appealed the respondent’s decision not to grant her application for regularisation to the LRC. This was heard in April 2015 and no resolution was forthcoming and in late 2015 the claimant and respondent entered mediation to resolve all employment issues. It was submitted that the claimant’s representatives attempted to have matters returned to the WRC but the respondent refused to engage.
In mid-2015 an agreement had been reached between the respondent and Trade Unions regarding the establishment of an appeals process for staff that failed to attain regularisation under the terms of circular 17/2013. The appeals process was restricted to staff who had made an application for regularisation prior to June 30th, 2014. The respondent submitted that a submission had not been made by the claimant as part of the agreed binding appeals process. It was submitted on behalf of the claimant that she was never made aware of the existence of the appeals process and it was the respondents duty to inform her. The claimant was on carer's leave at the time. The claimant’s role was advertised in open competition unlike other employees in a similar position for whom, following informal discussions between the union and the respondent, Management proposed to hold a confined competition for the identified personnel and implement its outcome accordingly. The claimant applied for the position but was ill on the day of the interview and did not proceed with the interview. The competitive process has concluded and the successful candidate commenced in the position with effect from January 1st, 2018.
Findings:
Having examined the evidence as submitted, I have formed the following opinion
Both parties made written and verbal submissions.
The issue of "acting - up" and long term acting up is that it can create a sense of entitlement in an individual who assumes the responsibilities and duties of the position they occupy albeit on a temporary basis.
It is clear from the evidence submitted that the claimant felt that she had an entitlement to the position, but the claimant was fully aware that the position she competed for, was Acting Assistant Director of Nursing. The letter of confirmation dated 17th May 2011 clearly states this.
I find that the claimant did not meet the criteria for regularisation as set out in circular 017/2013.
However, a subsequent appeals process was set up to handle such claims and the claimant submitted that she was never informed of this process and that the respondent failed to notify her of same. In correspondence from the claimants Union representative, dated 16/08/2016 and again on 6/10/2016, demonstrates a clear understanding of the appeals deadline, which was "missed" or "inadvertently missed". I understand that the claimant may have been on leave at that time.
As a result, the claimant was not identified by management as an individual who would qualify for the confined competition method and as a result the claimant’s role was forwarded to the NRS. The claimant applied through open competition for the role she held but unfortunately was ill the day her interview was due to take place.
The issue of regularisation became a protracted process and has subsequently been filled on a permanent basis.
Given the fact that the claimant did not qualify under circular 017/2013 and an appeal was not lodged on time. I don’t believe the respondent, given the timescale of the protracted stalemate, had a viable alternative other than to forward the position to the NRS in compliance with its own procedures. It is unfortunate that the claimant was unwell the day the interview was to take place but the respondent is not obliged to reconvene the panel of Interviewers for a missed interview as to do so could create its own legal difficulties.
Furthermore, the claimants Union has collective bargaining rights to which the claimant agreed to. Circular 017/2013 and its subsequent appeals process were formed because of a collective agreement on regularisation.
Based on the evidence as submitted I make the following recommendation.
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I am upholding of the respondent’s position.
Dated: 24.7.18
Workplace Relations Commission Adjudication Officer: Jim O'Connell