Complainant

Respondent

Anonymised Parties

A Nursing Manager

A Health Services Provider

Representatives

Siptu

Industrial Relations Officer

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-00016992-001

24/01/2018

The complainant was carrying out the functions and responsibilities of a post at a more senior level for a period of approx. 10 years. On the regularisation of the post no retrospection was given.

The complainant commenced employment with the respondent on 1 March, 1998. In 2006 he was asked to take over a different area of responsibility as this service was in crisis at the time. He was assured by the employer at the time that, though he would lose his ‘night allowance’ this would be mitigated by virtue of his being upgraded to CNM2. Post reassignment, he made a formal request for the promised upgrade to CNM2 and repeated this request in 2009. From this time, while always expecting that the employer would make good on its initial assurance, he carried on in the assigned role. The complainant has since been offered the upgrading following an arrangement covering Persons In Charge (PICs) but he is anxious that his years of carrying out functions and responsibilities at CNM2 level be recognised.   All of the PICs comprehended by the arrangement were reporting to managers at CNM2 level with the exception of the complainant.

There is no legitimate process for the respondent to concede this claim. The respondent is obliged to comply with the Public Service Management (Recruitment and Appointments) Act 2004. The making of any permanent appointment to a position is governed by the Health Act 2004. The respondent upgraded the PICs as agreed with staff organisations from April 2017.   Any concession of the complainant’s claim could lead to knock on claims.

The issue of permanent appointment to CNM2 has now been resolved insofar as an arrangement was put in place to grade PICs at CNM2. The outstanding issue related to the length of time the complainant was carrying out this role without an allowance. It is clear that he was given to believe that he would be in receipt of an allowance equivalent to CNM2 scale and, indeed, there is no dispute that he was carrying out functions at that level.   While the respondent has emphasised the legal obligations in relation to procedures for permanent appointment it is clear that these did not apply to acting positions and there would not appear to be any compelling reason for the complainant not to have been given some recognition in the form of an acting allowance, particularly as he was losing other allowances by agreeing to take up the position in 2006. The particular position of the complainant is distinguished from other PICs whose reporting relationship was to an CNM2.

In all of the circumstances, I am recommending in full and final settlement of this dispute that the claimant be paid a compensatory sum of €7,000 for the respondent’s tardiness over a ten-year period in regularising the position. This recommendation is based on the unique circumstances of this dispute and should not be invoked or relied upon in any other forum.

I recommend in full and final settlement of this dispute that the claimant be paid by the respondent, the sum of €7,000 as compensation for the unfairness of its treatment to him, which not being an award of wages is not subject to tax. This recommendation is based on the unique circumstances of this dispute and should not be invoked or relied upon in any other forum.

Carrying out functions appropriate to a more senior level post for approx. 10 years without an allowance.