Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Maura Hickey

Irish Nurses and Midwives Organisation

Paul Hume

IRO

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-00016933-001

18/01/2018

1.    INTRODUCTION

1.1         This claim is brought under Section 13 of the Industrial Relations Act on behalf of the claimant .

1.2         On the claimant’s behalf the following is claimed;

a)    That she should be regularised in her existing post as a Clinical Nurse Manager 1 in Care of the Elderly Services

b)  The claimant be paid €5000 in compensation for failure of the employer to fill a permanent vacancy within a reasonable timeframe hence, the employer failed to comply with the respondent’s Circular 17/2013, HR Guidance on the management of letters of Appointment/HSE HR Circular 17/2013 and for the claimant being disadvantaged from a pension perspective.

2.    BACKGROUND

2.1         The claimant qualified as Registered Nurse from the Letterkenny Institute of Technology in 2003.   Following graduation, the claimant commenced working at her current location. Since qualifying the claimant has gained vast experience in nursing the older person and is committed to lifelong learning and development. The claimant has continued to develop her professional competencies by undertaking additional training such as courses on changing supra pubic catheters, venepuncture, anaphylaxis, PICC lines, TPN feeding and the First Time Managers Course.   The claimant continues to keep her mandatory training updated completing Manual Handling, Fire Training, Cardiac Pulmonary and Respiratory Resuscitation.

2.2         The claimant took up post as a temporary CNM1 working 28.75 hours per week in BVW in January 2012, six years and eight months ago.

2.3         The claimant is paid at the sixth increment of the CNMI salary scale €37,010.10. The claimant is paid pro rata for reduced hours of 28.75.

2.4         On 20 October 2017 the claimant emailed Mr PM, Head of HR regarding regularisation. Appendix 3.

2.5         The claimant did not receive a response from Mr M.

2.6         The claimant wrote to Ms GM, in November 2017 seeking to be regularised in her existing post.

2.7         On 8 January 2018 the INMO wrote to Ms.GM seeking a meeting to discuss the claimant’s regularisation and offered a date for the requested meeting.  

2.8         On 10 January 2018 Mr H responded stating that currently there was no way of making the claimant permanent in the post. It would have to be through competition.

2.9         On 10 January 2018 the INMO responded advising that it would now refer the matter to the WRC for adjudication.

3.    CONTEXT

3.1         On 13 October 2013, the respondent issued a circular following national agreement with the unions which was to result in the ceasing of long term acting in promotional posts ( HR Circular 017/2013). This process took place under the auspices of the Haddington Road talks. There were strict criteria required in order for an employee to be regularised under this circular outlined below;

a)            The process will be cost and WTE neutral.

b)            The substantive post to be filled must be vacant. There will be no backfilling of any consequential vacancy.

c)         Any post for which regularisation is proposed must have been acted in on a continuous basis for at least 2 years at 31 December 2012, and the acting must have continued since that date.

3.2         Management were issued with a HR Guidance Document on the management of letters of Appointment /HSE HR Circular 17/2013, (Appendix 2). In Part 2 – Temporary Appointment of more than three months duration it states the following under point e:- Termination of the Temporary Appointment:- It is the responsibility of the line manager to ensure the temporary appointment ceases when a permanent appointment is made or if a decision to rescind the basis for the temporary appointment is made, i.e. post holder returns to post, decision to suppress the post, or an alternative to filling the post on a permanent basis. It is envisaged that such temporary appointments should not exceed twelve (12) months, however if a decision has been made to fill on a permanent basis, the temporary appointment can remain, until that process is concluded and permanent appointment made.

Under point f: - It states When a temporary appointment extends beyond 12 months, pay arrangements will progress to the next point of the pay scale for the higher grade. However, such temporary appointments beyond 12 months should only be on an exceptional basis as they would run counter to the concept of temporary appointments. Incremental progression on the substantive scale remains in place to ensure no disadvantage when reverting to same.

4.    PRECEDENT

4.1         In 2010 the INMO won a case at the Rights Commissioner when it took a case for a nurse who had been working at the grade of a CNM1 for nearly 5½ years having to sign subsequent contracts, r-090633-IR-10 EOS, . The substantive post had been vacant for a period of 2 years and the employer used the Department of Finance moratorium on appointment as a reason not to appoint.

5.    UNION ARGUMENT

5.1         The INMO contends that the rationale and principles of this case are the same as   the claimant’s. Furthermore, it is unfair and unreasonable of the HSE, the employer, to expect a person to act into/ fill a post for a period greater than one year. The claimant has been in this acting/temporary CNM1 position for six years and eight months, fulfilling the role diligently. The respondent has failed to implement its own circular 17/2013 and has let the acting arrangement drag on for six years and eight months. This period far exceeds the 12 months referred to in the respondent’s Guidance document. Regularisation of the claimant would be cost neutral as the claimant has received incremental credit for her years in the vacant post and is on the 6th point of the CNM1 salary scale already.

5.2         The claimant has been acting in a post for over six years and eight months, with management applying every six months for a further extension to existing contract. If the Fixed Term Workers legislation were applicable in this instance, the claimant would be in the post permanently now. The substantive post has been vacant for a period of six years and eight months and the employer is using that it does not have a process to appoint the claimant as a reason not to appoint. It is only reasonable that after this length of time that the claimant is regularised into the post of CNM1 on a permanent basis which would compensate for the negative pension impact, acting for almost 7 years. The claimant should be paid €5000 for failure of the employer to implement its own circular in a timely manner.

6.    CONCLUSION

6.1.      The claimant has worked in an acting post with significant additional responsibilities since January 2012 and has undertaken such duties to the clear satisfaction of her employer. She has attempted to resolve the acting situation without any success. It is incumbent now that the claimant is appropriately rewarded for her commitment and dedication

It is on this basis, we respectfully seek a recommendation in our favour.

The respondent’s representative that the INMO’s presentation of the claimant’s grievance was accurate and sought an adjournment with a view to regularising the claimant’s appointment.

I have reviewed the evidence presented at the hearing and accept that the union have advanced a very compelling argument for regularising the claimant’s appointment given the fact that she has acted in the position for in excess of 6.5 years , that the respondent has been in breach of their own guidelines and circulars with respect to temporary appointments – which are intended to be exceptional – and given that the claimant would at this point have acquired rights to a CID had she been recruited 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 CNM1 as a matter of urgency and that the claimant be paid a compensatory payment of €2,500 for the respondent’s tardiness in regularising her position. This recommendation is unique to the particular circumstances pertaining in this dispute and cannot be invoked or relied upon at any other forum.