Complainant

Respondent

Anonymised Parties

An Employee

A Health Service Provider

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-00019949-001

22/06/2018

The Complainant’s Trade Union representative submitted that, on 30 April 2012 the Complainant was appointed, following an interview process, to the permanent post of Senior Administration officer (Grade VIII) on her current terms and conditions of employment. It was stated that, at the time of this appointment, this was the way many similar posts were filled.

It was submitted that, in this case, the Complainant’s appointment was on the clear understanding that, at the first opportunity, the Respondent would regularise the Complainant into her role as a Grade VIII. In support of this position, the Complainant’s representative furnished a letter dated 22 January 2019 from a member of senior management, who had participated in the Complainant’s selection process in April 2012. This letter stated that the Complainant “would receive the appropriate grade VIII salary once the short-term difficulties being experienced as a result of the budgetary constraints and moratorium in place at the time, past”.

It was further submitted that the Complainant was in a permanent Grade VIII post that was covered by a memo from the Respondent’s Director General that stated they would not have to go through a competition for the post. It was also submitted that there is a significant amount of correspondence clarifying that the Complainant’s post was a permanent Grade VIII post, which she had successful obtained at interview.

The Complainant’s Trade Union representative submitted that, on the basis that it was the stated intention of the Chairperson of the Interview Board that the disparity in pay between Grade VI and Grade VIII remuneration would be resolved at a future date, the Complainant took on the role and gave up her substantive post, which she held at that time. It was further submitted on behalf of the Complainant that her substantive post was filled in 2012.

It was submitted on behalf of the Complainant, that she only committed to the new role when she was assured by a number of people at management level that she would not be putting her livelihood in jeopardy. The Complainant submitted documentary evidence in support of her contention in this regard. In particular, reference was made to a letter, dated 14 June 2012, from the Complainant’s Acting RDO, at the time, indicating that approval had been agreed for the Complainant’s new Grade VIII status. This correspondence further indicated that the “HR paperwork” had already been signed and requested that the budgets would follow.

The Complainant stated that a very clear paper trail exists, which details the assurances she received that her post, which she had successfully obtained at interview, was as a permanent Grade VIII post. It is further submitted that this paper trail also shows the efforts a number Senior Managers, within the Respondent’s organisation, made to try to resolve the issue.

However, it was submitted that, notwithstanding these efforts by Senior Management, the Complainant continues to be treated less favourably than her colleagues in similar posts in other departments. It was submitted that other colleagues, who were in the same position as the Complainant and were not covered by the HR Circular 17/2013, have had their positions regularised. It was further stated that there are number of examples of this regularisation which occurred at the Labour Court and at the Adjudication Service of the WRC. Particular attention was drawn to Labour Court Case, reference LCR to 1771.

It was further submitted on behalf of the Complainant, that none of her colleagues in the RDPI Office – West were required to apply for the post to which they were transferred following the dissolution of the RDPI Offices. In this regard, it was submitted that there was an agreement between the Respondent and the Trade Union involved that, because the RDPI office was abolished, the staff would get first call on posts in other areas within the Respondent organisation. According to the evidence submitted, the Complainant was the only person who had to apply for her post, interview for same, was successful and moved to her new role on her current terms and conditions.

The Complainant’s Trade Union representative stated that, after seven years, the matter in relation to the Complainant’s grade needs to be resolved. It is further submitted that the Complainant continues to perform her duties diligently at Grade VIII level within her role in her department. She has undertaken all aspects of this Grade VIII role and continues to perform at that level alongside her two other Grade VIII colleagues.

It was submitted that the Complainant had her Grade VIII remuneration backdated to October 2013 for the position to which she was transferred. According to the Complainant this fact is an acknowledgement by the Respondent that her role was that of the Grade VIII. In addition, it was submitted that during this time, the Complainant’s direct line management carried out performance appraisals on her as a Grade 8 in the Department, without incident. It was further stated that the Complainant also covered for her boss, an Assistant National Director, in the latter’s absence.

It was pointed out by the Complainant’s Trade Union representative that the mechanism used to pay the Complainant has a clause that requires that this rate of pay would be paid until the permanent filling of the post. However, it was contended on behalf of the Complainant that her post was a permanent post which she had successfully obtained at interview back in 2012.

Notwithstanding this, it was submitted that, in November 2018, the Respondent forced the Complainant to apply for her own position in spite of the objections of her Trade Union, who took the unusual step of requesting that the competition be stopped. However, this request was not adhered to and, as a result, the Complainant was left with no option but to apply for her own post. It was stated that the subsequent competition resulted in the Complainant being placed 10th on the panel for the job, which she had been doing for the previous seven years.

The Complainant’s representative submitted that her substantive post had been abolished since 2012 and her stepping up to the mark had been forgotten about by those who needed it at the time and got the work done since 2012. In addition, it was submitted that the Complainant has been further impacted by recent communication from the Respondent to the effect that it was their intention to transfer her out of her current department. Consequently, at the time of the Hearing, the Complainant does not know where she is going, to what role or when this will even happen. It is submitted on behalf of the Complainant that this is a very unreasonable position for any staff member to find themselves in.

Conclusion:

In summary, it was stated, on behalf of the Complainant, that, due to the fact that the original interview panel members supported the claim that the post she accepted would be regularised at Grade VIII and that acceptance of the post was based on this, the Complainant is seeking to have her post regularised by being permanently realigned to a salary of Grade VIII on the sixth point on the scale which is the rate for the job she’s been doing for the last seven years.

Background:

In April 2012 the Respondent advertised the post of a Grade VIII in the Regional Quality and Patient Safety office – West. This post was filled via the process of Expressions of Interest (EOI).

The Respondent explained that the EOI process was initiated during the moratorium on recruitment which came into effect on 27 March 2009. The EOI was a process for enabling and facilitating the filling of a vacant post but the successful candidate (who had to have prior approval from their respective Line Manager in the first instance to apply) transferred into the post under existing terms and conditions of employment. The scheme operated on a Grade to Grade basis i.e. the applicant should have been at an equivalent grade to the post that they were expressing an interest in. The successful candidate’s position number and full-time equivalent (WTE) budget also transferred with them to their new service area.

The Respondent stated that the overall impact of the EOI process was cost neutral whilst enabling some critical vacant posts to be filled during a period of challenging financial constraints within the organisation.

Respondent’s Submission to the Claim:

The Respondent stated that, in April 2012, the Complainant was interviewed and was successful in the EOI process. She was subsequently offered and accepted the post towards the end of April 2012. The Complainant was offered the post, based on her current salary and conditions of employment. The Respondent presented evidence, by way of an email dated 10 May 2012, from the Complainant indicating that she did wish to accept the offer and was negotiating a start date with her manager.

Consequently, the Respondent submits that the Complainant would have been very clear, at all times, that she was transferring into her new position under the terms and conditions of a substantive post. It was further stated that the Complainant’s substantive post was a Grade VI and she effectively transferred into her new post Quality and Risk Manager, which was a Grade VIII post, on the terms and conditions of a Grade VI.

The Respondent contends that it is difficult to comprehend the Complainant’s rationale that there was an expectation that her post would be regularised by any other mechanism other than the nationally agreed recruitment established processes. It was further stated that HR Circular 17/2013 clearly sets out the Respondent’s obligation to comply with the Recruitment and Appointments Codes of Practice. The Respondent further stated that the Codes of Practice are based on the core principles of property, equity and fairness, appointments are based on merit and best practice which should be applied to all recruitment process.

According to the Respondent’s evidence, the Complainant was not comprehended under HR Circular 17/2013 for regularisation as she did not fulfil the specified criteria set out in the circular, which required that the post for which regularisation is proposed must have been acted in on a continuous basis for at least two years, as at 31 December 2012 and the acting arrangement was to have continued since that date.

The Respondent further stated that HR Circular 17/2013, which had its origins as part of the Haddington Road Agreement (HRA), endeavoured to address employees who had, at that time, being paid “Acting Up” on a long-term basis and who could not have been appointed into the post arising from the moratorium on recruitment. It is contended that this circular also set out to revised processes and procedures to be adhered to for the future appointment of temporary vacant posts, so as to avoid issues of long-term “acting’s” arising again. The Respondent stated that the process of regularisation of posts under Circular 17/2013 was concluded before the end of June 2014.

The Respondent stated that, on the dissolution of the Regional structures in September 2014, the Complainant offered to transfer from the Regional Quality and Patient Safety Office – West to the National Quality and Patient Safety Division (NQPSD), based in Tullamore, while continuing to retain her base in the West. It was further stated that in 2015, the NQPSD underwent further restructuring which saw the Complainant’s section assigned to the Quality Assurance and Verification Division (QAVD).

According to the Respondent’s evidence, the Complainant was advised, by HR in September 2015, that, as an enabler to the addressing of her situation, she should liaise with her manager with regard to seeking to have her temporarily appointed into the post which would be effective from 1 October 2013. It is further submitted that the Complainant was sent direct relevant documentation for completion and sign off to process a temporary appointment. In addition, the Respondent stated that the Complainant was further advised that, under the EOI process, her substantive post was permanently assigned to the National Incident Management and Learning Team (NIMLT) and that she had transferred under her then terms and conditions of employment.

The Respondent stated that there were further communications with the Complainant, Senior Managers and HR towards the latter end of 2015 and throughout 2016, where the Complainant was again advised that she did not meet criteria for regularisation into her post under HR Circular 17/2013 but it would be more appropriate to have her temporarily appointed pending the post being advertised and affording her the opportunity to compete, which is an established practice.

According to the Respondent, arising from these various engagements between Management and HR, there was agreement to process a temporary appointment for the Complainant with effect from 1 October 2013 pending the post being advertised for permanent filling. The Complainant presented evidence by way of correspondence which sets out the Complainant’s formal temporary reassignments, which have continued to date.

The Respondent then referred to a meeting held between the Complainant and Local Management on 8 May 2017 to again address the issues pertaining to the post and subsequent regularisation of same to Grade VIII. However, the Respondent stated that this meeting ended inconclusively.

The Respondent stated that, as a follow-up to the above correspondence and to the Complainant’s communication with the Director General’s Office, the Director of Human Resources met with the Complainant on 17 June 2017 to further establish and gain insight into the complexities of the situation and ongoing issues. The culmination of this engagement, as reflected in correspondence dated 4 August 2017, was that effectively the background to the case was such that the circumstances unfortunately did not fulfil the criteria for permanent filling of posts under HR Circular 17/2013 and, pending the post being advertised, it would be remunerated as a temporary Grade VIII, with effect from 1 October 2013.

The Respondent wished it to be noted that they were very sympathetic towards the Complainant’s circumstances and also recognised that NQPSD acted, at all times, in good faith and compassion in endeavouring to resolve the issues, noting that the ultimate outcome was to have the post advertise nationally via the National Recruitment Services (NRS).

According to the Respondent’s evidence, the current status of the Complainant’s post is that a national Grade VIII competition was carried out under the auspices of the NRS, the panel was created and the successful candidate, who was placed Number 1 had accepted and is in the process of being offered the post with a commencement date in the near future.

Conclusion:

In summary, the Respondent urged that the Adjudication Officer would accept that at all times the Respondent management pursued and exhausted all appropriate pathways of engagement striving to resolve the Complainant’s post in adherence with nationally agreed HR Circulars.

I have given careful consideration to the written and oral submissions presented by and on behalf of the Complainant and the Respondent.

The Complainant was appointed to a Grade VI position in 2008. In April/May 2012, the Complainant was appointed into a Senior Administration Officer post, which is graded at Grade VIII. However, given the moratorium that existed at that point in time, appointments to positions were made on the basis of a process called Expression of Interest (EOI). In this process, the successful applicant transferred into the new post on their existing terms and conditions of employment. This process enabled certain critical vacant posts to be filled during a period of challenging financial constraints.

In 2013, discussions took place, under the auspices of the Haddington Road talks, aimed at regularising the situation in relation to staff who were holding down positions in an “acting” capacity. The outcome of these discussions was encapsulated in the HR Circular 17/2013. However, due to the fact that the Complainant did not meet the time limit requirements of that Circular, having only been in position for 7/8 months, as opposed to the requisite two years, her situation could not be regularised under Circular 17/2013.

In July 2014, on the disillusion of the RDPI – West Office, the Complainant was transferred to a Senior Administrative Officer post at Grade VIII level. According to the evidence submitted on behalf of the Complainant, this transfer was on the understanding that once the budgetary constraints and moratorium in place at the time were lifted, she would receive the salary for the post.

Following this, a series of engagements and interventions took place with HR at a national level, the objective of which was the resolution of the Complainant’s grading situation. Some progress was clearly made in this regard as in November 2016, agreement was reached to apply the temporary assignment provisions of the HR Circular 17/2013 to the Complainant. As part of this agreement the Complainant’s salary was regularised in line with Grade VIII levels and was backdated to October 2013. This effectively recognised that the Complainant was carrying out Grade VIII level duties/responsibilities and that she had been doing so for the previous three years. All that was missing then from a proper regularisation of a position was the fact that the post was not recognised as a permanent position.

In a Guidance Document prepared by the Respondent’s management with regard to the application of HR Circular 17/2013, I note the following position with regard to temporary appointments extending beyond 12 months in duration. The Guidance Document states that such contracts “should only be on an exceptional basis as they would run counter to the concept of temporary appointments”. The Complainant has operated in a Grade VIII position since November 2013, with her situation being put on a temporary assignment footing in November 2016. Based on that, I am satisfied that the Complainant has been actively carrying out the duties and responsibilities of a Grade VIII position for over five years.

In a context where the Complainant has, in effect, been in position and carrying out the duties of a Grade VIII since 2012, where there is significant documentary evidence to support her position that her appointment, at that time, came with Senior Management commitments that her position was permanent and the compensation/benefits aspect of the appointment would be regularised when the Respondent’s financial situation had improved and the moratorium was lifted and, finally, where there is ample case law from both the WRC Adjudication Service and the Labour Court pertaining to the regularisation of a number of colleagues of the Complainant, who found themselves in similar or analogous situations, I find that the Complainant’s continuing situation is unreasonable and untenable.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above and taking all of the circumstances into consideration, I recommend that, having regard to the specific circumstances and the duration of the Complainant’s temporary appointment and in the absence of any exceptional basis for that appointment continuing in that status, the Complainant should be appointed to a permanent position at the grade she has temporarily held since 2012, i.e. Grade VIII.

I further recommend that the Complainant’s appointment should take effect from the date of acceptance of this Recommendation.