Complainant

Respondent

Anonymised Parties

A Nurse Manager

A Health 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-00026909-001

08/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026910-001

08/03/2019

The complainant, who is a senior nurse manager was appointed on an acting basis to a higher post on October 10th, 2013.

She remains in the position and seeks to have the appointment made on a permanent basis.

At the date of the hearing she has been acting for five years and eight months.

The respondent points out by way of a preliminary issue that the complainant is not the only person affected by the delay in regularising their long term ‘acting’ post and all of the affected cases are currently within the collective bargaining structures of the respondent.

The respondent sought an adjournment in order to allow these discussions to reach a conclusion.

There is a strong thread of cases referred under the Industrial Relations Act confirming the importance the WRC (and its predecessor) attaches to internal and local procedures, and the need for such bargaining mechanisms to be fully exhausted before a recommendation will issue under the Act.

It was for this reason that the respondent sought an adjournment.

The purpose of ‘acting up’ arrangements will be obvious on any normal reading or understanding of what the phrase means. It is a short-term arrangement to meet a situation in which the main postholder is not available to discharge it for any reason.

It is also, of course a good opportunity for the person ‘acting’ to gain valuable experience which might benefit their career progression in the future.

When the acting up arrangement extends to a duration such as we have here, when it represents a not insignificant percentage of a person’s entire working life, it is a different matter (currently five years and eight months).

Then it begins to represent an inequity to the person cast into the limbo of being stuck between their substantive post and the one in which they are acting.

Therefore, unreasonable delay by parties in achieving a resolution of a matter will eventually serve to displace the traditional deference to local or internal processes referred to above. If there are internal procedures, it is reasonable to expect them to do the job for which they were set up.

An Adjudicator cannot indefinitely deny a person a remedy on the basis of such a principle unless there is evidence of the matter being moved forward with reasonable dispatch.

Accordingly, the parties need to set a reasonable timeframe within which the case brought by the complainant is to be addressed.

Should they fail to do so, or having set a timeframe fail to meet that timeframe, this, or a similar complainant may find that, in those circumstances an Adjudicator will then feel sufficiently free to make a more specific recommendation.

Complaints CA-26909-001 and 26910-001 are duplicates.

While I do not uphold them on this occasion I recommend that the parties set a reasonable timeframe (about six months from the date of the recommendation or such other timeframe by mutual agreement) within which the case brought by the complainant (and others) should be addressed and resolved.