FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE (REPRESENTED BY PATRICK J DURCAN & CO) - AND - A WORKER (REPRESENTED BY GALLAGHER & BRENNAN SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision ADJ-00008852.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Worker in relation to redeployment. The dispute relates specifically to the Worker's claim that she was appointed to a Grade VI role in 2013 and was unilaterally reverted back to her previous Grade III position some four years later. The Employer rejects the Worker's claim, arguing that the Worker was redeployed into the new position while retaining her current Grade III terms and conditions of employment.
The matter was referred to a Adjudication Officer for investigation and recommendation. On the 22nd February, 2019 the Adjudication Officer issued her Recommendation as follows:
"In all of the circumstances I am recommending in full and final settlement of this complaint that the parties engage as a matter of urgency with a view to agreeing a mutually acceptable appointment of the Claimant as a Grade 6 or equivalent to a mutually acceptable location- which the Claimant can move to following medical certification of her fitness to return to work. I further recommend that all inferences of misrepresentation by the Claimant with respect to the 2012 competition be expunged from her records".
On the 2nd April 2019, the Employer appealed the Adjudication Officer's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 13th June, 2019.
The following is the Decision of the Court:-
DECISION:
This is an appeal by an employer against the Recommendation of an Adjudication Officer ADJ-00008852, CA-00011786-002 in a claim made by an employee that she was appointed to a Grade VI position on 4thFebruary 2013 and was subsequently reverted back to her previous Grade III on 1st July 2017.
The Claimant claimed that the post she was successful for and appointed to on 4thFebruary 2013 was described as whole-time, permanent and pensionable post and accordingly the Employer had no right to revert her back to her previous grade. The Adjudication Officer found in her favour and recommended that she should be appointed into a Grade VI position as a matter of urgency.
Management stated that the Claimant applied for and was successful in attaining a position as Surveillance Officer (Grade VI equivalent) in February 2013. The position was advertised as “Redeployment Expression of Interest”. It stated the following:-
- “Expressions of interest for the above post are invited from existing permanent qualified staff”
The post is required immediately and will be filled on a redeployment basis at existing grade, remuneration and current terms and conditions.
The letter of appointment sent to the Claimant on 15thJanuary 2013, stated that she had been appointed to the role on her existing grade/terms and conditions. She was duly appointed into the position on her existing Grade III salary.
Management stated that due to the embargo on recruitment in place at the time, it was not possible to fill the role at Grade VI level, therefore it was restricted to filling it as a redeployment and accordingly sought expressions of interest in that capacity.
In September 2014, the Claimant sought to be regularised in accordance with Circular 017/2013, however, as she did not have two years’ service in the role, she did not qualify. She then sought as per paragraph 6 of the Circular, to be “contracted” pending the filling of the post. This would allow her to be given temporary contracts at the rate of pay commensurate to the acting up post pending the permanent filling of the post. This process was put in place and in August 2015 the Claimant received back pay at the Grade VI level to 1stOctober 2013, in accordance with the terms of paragraph 6 of the Circular. She received two temporary contracts, on 31stMay 2016 and the second was for the period from 1stJanuary 2017 until 30thJune 2017.
By email dated 18thAugust 2015 Management confirmed that the Claimant’s position had been approved at a higher level backdated to 1stOctober 2013 in a temporary capacity until such time as a competition was held for a permanent appointment. In October 2016, the permanent filling of the post commenced, the Claimant applied and was ranked second in the competition.
On 13thJune 2017 the Claimant was informed that her temporary position in a Grade VI role was ceasing on 30thJune 2017 and she was being reverted back to her substantive grade, Grade III.
The Claimant contended that her appointment to the Grade VI role was on a permanent basis, as per the details contained in the job specification for the role. Accordingly, she submitted that she was wrongfully removed from her permanent post. She said that in advance of taking up the role she was informed by Management that once she had two years in the role and/or the embargo was lifted a business case would be put forward to have the Grade VI salary applied to her.
The Court has given careful consideration to the position of both sides. The Court notes the unsatisfactory situation where the Claimant was carrying out a Grade VI role for over four years while the substantive position was at Grade III. However, the Court understands that this arose in exceptional circumstances where due to the Government’s embargo on recruitment, it was not possible to fill vacancies which arose.
The Court is satisfied that the role as advertised in July 2012 was to be filled on a redeployment basis at an applicant’s existing grade, remuneration and current terms and conditions, as appeared on the front page of the advertisement. While the role itself was a permanent whole-time role, it was not being advertised as a job vacancy but“Redeployment, Expression of Interest”and regardless of the Grade of the applicants, the successful applicant was to remain at his/her current grade. This was very clear from the advertisement and was made clear to the Claimant in a confirmation letter of her appointment to the role by letter dated 15thJanuary 2013. From the Claimant’s various correspondence with Management it is clear that she also understood that it was a redeployment on her existing grade and she actively engaged in a process to achieve Grade VI.
The Court notes that the Claimant has been unfortunate in that she did not qualify for regularisation under Circular 17/2013 and her role was not eligible for evaluation under Circular 14/2016, both of which could have resulted in her remaining in the Grade VI post with the applicable Grade VI salary. However, despite the fact that the Claimant was in regular correspondence with Management concerning the status of her role, she was not informed of Circular 17/2013 by Management. Instead she discovered it by chance and while the regularisation terms did not apply to her as she did not have sufficient service on the applicable date, 31stDecember 2012, there was a provision in paragraph 6 which provided for her position to be contracted pending the permanent filling of the post. The Claimant exercised this option which led to her being furnished with temporary contracts and payment at Grade VI level retrospective to October 2013, however, it also provided for the filling of the post on a permanent basis by open competition, which she applied for. The Claimant’s grievance was then amplified by the fact that she was ranked second in the competition, so the permanent post was filled by another.
The consequences of which left Management with no option open other than to revert her to her Grade III substantive position, despite the ending of the embargo at this time.
Conclusion and Recommendation of the Court
While it is extremely unfortunate for the Claimant, taking all of the above provisions into account the Court must concur with Management’s position, regrettable and all as it turns out.
The Claimant has been out sick since 1stJuly 2017, it appears that some confusion has arisen in the meantime as to the appropriate point on the Grade III scale she should have been assimilated to on reverting to her substantive grade. It appears that she was placed on the first point of the Grade III scale on 1stJuly 2017 instead of the maximum point to which she was entitled to by virtue of her length of service on that Grade. Furthermore, she had been in receipt of a Training Allowance which appears to have been discontinued. Management gave the Court a commitment that this situation would be rectified, and her appropriate pay (including the Training Allowance) will be paid to her backdated to the appropriate date.
The Court notes that Circular 17/2013 reflects a collective agreement which dealt with arrangements to apply to staff performing the duties of a higher grade in circumstances other than permanent promotion. That agreement provided that the practice of staff “acting up” in positions higher than their basic grade would cease. In a guidance document attached to the 2013 Circular it clarified that following the agreement temporary appointments extending beyond twelve months in duration“should only be on exceptional basis as they would run counter to the concept of temporary appointments”. The Court accepts that having been in a higher role for over four years the Claimant had a genuine expectation that she would retain that grade on a permanent basis, however, due to unfortunate circumstances that role is no longer available.
The Court notes that on two occasions the Claimant had been deemed eligible for the Surveillance Officer Grade VI job and she is in line for the next vacancy in that role, therefore the Court recommends that on cessation of her sick leave and resumption to work, she should be appointed to the position if such a vacancy should arise within two years. Furthermore, due to the difficulties encountered by the Claimant, the Court recommends that she should be compensated by a payment of €5,000.
The Adjudication Officer’s Recommendation is varied accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th July 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.