Complainant

Respondent

Anonymised Parties

An Employee

A Health Service Provider

Representatives

 Independent Represenative

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-00018013-001

16/03/2018

The Complainant commenced employment with the Respondent in 1983, working initially as a clerical officer. In 2001, the Complainant was successful at interview and appointed as Assistant General Manager in County Donegal.

The Complainant is currently employed as a General Manager in Galway, a role which he has held since 1 August 2016. Prior to his current role, the Complainant was a General Manager in another role since June 2011.

The Complainant is seeking a recommendation that provides (1) permanent confirmation in his current General Manager position in Galway, (2) retrospection in relation to his rate of pay for the period 27 May 2011 to 30 September 2013 and (3) adequate compensation for the stress and anxiety caused by the Respondent’s actions in respect of his complaint.

In submission on behalf of the Complainant, it was stated that, in early 2011, he responded to an Expression of Interest Notice for a specific Regional Manager position. It was further submitted that this position was pitched at General Manager level or above and persons deemed eligible were to be reassigned/redeployed on a grade for grade basis on their then current terms and conditions.

According to the Complainant’s evidence, while the Complainant’s then grade (Grade 8) was just below the General Manager Agreed, the selectors for the position were most anxious to attain his skills/competencies, as they matched the requirements. To this extent the Complainant submitted that, when he made an enquiry in relation to the position, he was told to apply. It was stated that the Complainant and one other person were successful at interview and permanently redeployed to the Regional Manager role.

The Complainant stated that, mindful of the rate of pay for his redeployed role, he sought assurances that he would (a) obtain the rate for the job General Manager level and (b) that he would be probably confirmed, as soon as possible, to this appropriate rate of pay and grade.

According to the Complainant’s evidence, he received a verbal commitment, at the time of his appointment, from the Assistant National Director, that, when the circumstances in the economy allowed, he would be confirmed as General Manager in respect of both pay and grade. It was further submitted on behalf of the Complainant that he was in no doubt that these commitments, given by the Assistant National Director, constituted an oral contract/agreement to be honoured at a future date. It was further stated that the Complainant had such confidence in what been agreed that he permanently relocated from Donegal to move closer to his new work location in County Mayo. It was submitted that this involved selling his house at a loss.

It was stated that the Complainant continued in this position with the only material change being in January 2012 when his reporting relationship changed. In December 2012, the Complainant’s role expanded when, at the request of his a then boss, he took on additional national duties, on top of his existing role. It was further stated on behalf of the Complainant that, at a meeting in December 2012, with his boss, they discussed his grading and the previous oral contract agreement that had been given. According to the Complainant’s evidence, it was agreed that a letter of comfort would be issued to facilitate his being confirmed at General Manager grade. It was stated that, while this correspondence did not issue, it was discussed periodically and, as such, the Complainant was reassured that, when the time was right, his position, as per the oral contract/agreement would be confirmed.

It was further submitted that, in October 2013, the nationally agreed HR Regularisation Circular (017/2013) issued. Supported by the Assistant National Director of HR, the Complainant applied for regularisation under this process. However, it was stated that his application was rejected on the basis that he was just three months short of the timeframe criteria. However, the Complainant exercised his right of appeal to the Independent Appeals Officer, nominated to hear such appeals. It was stated that the outcome of the appeal, which is binding, confirmed as follows: “you do qualify for a temporary specified purpose contract at the level of General Manager from October 2013 until there is a permanent filling of the position at some future date”.

It was submitted that as a result of the Independent Appeals Officer’s findings, the Complainant was confirmed as General Manager with effect from 1 October 2013 and was provided with a Specified Purpose Contract, in this regard.

The Complainant stated that, on 1 June 2016, he was asked to permanently transfer, as General Manager, to a role based in Galway. It was stated that the assignment for this position was effective from 1 August 2016.

It was further stated that, in September 2016, the Complainant applied for and was successful at interview for General Manager positions, which were advertised at that time. It was stated that, in November 2016, the Complainant received letters confirming his placement on the General Managers panel at position eight for Area 2 and at position five for Area 1.

It was submitted on behalf of the Complainant that he had previously been requested to identify which area was his preference if successful at interview. According to Complaints submission this process is evidence that the General Manager roles are interchangeable and skills/competencies required are general and non-specific to geographic areas/offices.

It is further submitted, on the Complainant’s behalf, that he was requested to transfer permanently to the General Manager position in Galway, prior to the advertisement of the subsequent General Manager competition in September 2016. Consequently, it was submitted that the outcome of that competition should have no bearing on this post, which he accepted in good faith.

The Complainant submitted that he became concerned when the paperwork for his transfer was being formalised. It was stated, in the assignment paperwork which issued in May 2017, that management sought to revert to the Complainant’s previous Grade VIII pay and conditions. It was stated that the Complainant objected to these conditions and reminded management of the binding outcome from the Appeals process of March 2016. It was stated that, on the basis of the Complainant’s objections in this regard, he was subsequently confirmed at the General Manager grade.

It was submitted on behalf of the Complainant that, in July 2017, he was offered the General Manager position for Area 1, based in Donegal. However, given the previous assurances given in respect of his General Manager position and that he had sold his house in Donegal, the Complainant contends that the option to relocate was not feasible

Summary:

It was submitted on behalf of the Complainant that, his competencies/skills are sought after and utilised by the Respondent at will and he has at all times been an employee who was flexible and gives 100% commitment. However, it is submitted that the commitment appears to have been a one-sided affair.

It was further submitted that the Respondent’s failure to honour the oral contract/agreement given to the Complainant, as far back as March 2011, has had significant negative consequences for him. It is further contended that the Complainant has made life changing decisions based on his genuine belief that the oral contract/agreement would be honoured.

It was contended that the Complainant has worked as a General Manager in excess of seven years and is currently filling in a vacant position, which his current manager would be more than happy to see him confirmed in on a permanent basis. It was contended that furthermore, the Complainant is in receipt of the rate of pay for the job and as such there is no consequential financial implication for the Respondent.

According to the Complainant’s submission, previous national collective agreements on long-term acting have confirmed such “long-term actors” in their position after a period of three years or less. It is submitted that the Complainant has surely acted in the General Manager role well beyond a reasonable timeframe and seeks that he be confirmed in his current role, under his existing terms and conditions as the only fair outcome at this point and in keeping with other similar such case precedents. In this regard, the Complainant submitted a number of recent Adjudication Officer Recommendations, which he contends support his position.

In conclusion, the Complainant is also seeking some element of financial compensation for the stress and anxiety this protracted process has caused him and which would, hopefully, deter the Respondent from similar such actions into the future.

The Respondent did not attend the oral Hearing or make any response/submission in relation to the Complainant’s claim.

As the Complainant’s claim was made under the Industrial Relations Act, 1969, the Respondent was properly advised of their right to object to the complaint being heard by an Adjudication Officer. However, the Respondent’s failure to respond in this regard provides me with the jurisdiction to hear the Complainant’s claim.

I have given careful consideration to the written and oral submissions presented by and on behalf of the Complainant. However, I was not in a position to consider the Respondent’s position on the matter as they made no appearance at the oral Hearing. In this regard, I am fully satisfied they had been properly advised of the details in relation to the Hearing well in advance. It was also open to the Respondent to have presented written submission, but they failed to do so.

Consequently, in the absence of any response from the Respondent or any rebuttal of the Complainant’s submission, I can reasonably conclude that, based on the evidence submitted, as set out above, the Complainant’s claim is well-founded.

In June 2011, the Complainant was appointed into a General Manager post, having applied for same under the Expression of Interest process that was in place at the time due to the moratorium that existed. 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.

It was a further feature of the Expressions of Interest process that the successful applicant would be assigned to the new position on a grade for grade basis under their current terms and conditions. As the Complainant’s substantive position at the time was Grade VIII, he should not ordinarily have been in position to apply for a General Manager role. However, in this regard, I note the Complainant’s evidence to the effect that, when he initially made enquiries about the position, he was told to apply.

Having been requested to apply for the position and having been successful at interview, I am fully satisfied that the Complainers appointment to a General Manager post took place on the basis of the Expression of Interest process. I am also fully satisfied, from the Complainant’s evidence, that he was given verbal assurances, at the time of his appointment, by the then Assistant National Director, that, when economic conditions allowed, he would be confirmed to the General Manager pay and grade.

In 2013, discussions took place at national level, 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. Due to the fact that the Complainant’s time in his role fell three months short of the timeframe criteria, set down in HR Circular 17/2013, his position was not automatically regularised.

However, the Complainant exercised his right of appeal under HR Circular 17/2013. The outcome of the appeal was that the Complainant was confirmed on a temporary specified purpose contract, at the level of General Manager, from October 2013 until there was a permanent filling of the position at some future date.

The evidence shows that in June 2013, having been requested to do so by his line manager at the time, the Complainant took on some additional projects, at a national level. These projects were in addition to his carrying out the normal General Manager role duties and responsibilities attaching to his current role at the time. The evidence further shows that the Complainant was requested, in June 2016, to transfer permanently to a vacant role at General Manager level in Galway. This move became effective on 1 August 2016.

Clearly, some progress was made in relation to the Complainant’s situation, following his appeal in October 2013 of his application for regularisation of his position, as provided for in HR Circular 17/2013. This effectively recognised that the Complainant was carrying out General Manager.

In a Guidance Document prepared by the Respondent’s management with regard to the application of HR Circular 17/2013, I note the position with regard to temporary appointments extending beyond 12 months in duration. The Guidance Document states (at Part 2, Point f) that such contracts “should only be on an exceptional basis as they would run counter to the concept of temporary appointments”. The Complainant has effectively remained on temporary assignment, i.e. on a Specified Purpose Contract, since October 2013, which means that he has been actively carrying out full duties and responsibilities at General Manager level for over five years.

In a context where (1) the Complainant has, held down the position of and carried out the duties of a General Manager since June 2011, (2) his appointment, at that time, came with Senior Management assurances that his position would be regularised when the Respondent’s financial situation had improved and the moratorium was lifted, (3) his position as General Manager was further confirmed by the outcome to his appeal, in October 2013 with regard to the regularisation of his situation under HR Circular 017/2013 and (4) there are a number of decisions/recommendations from both the WRC Adjudication Service and the Labour Court, in relation to other staff of the Respondent who found themselves in similar or analogous situations, which are supportive of the Complainant’s contentions regarding the regularisation of his position, I find that the Complainant’s continuing situation is both unreasonable and untenable.

Consequently, taking all of the above into consideration, I am strongly of the view that the Complainant’s position at General Manager grade should be confirmed on a permanent basis.

In addition to the claim for regularisation of his General Manager position, the Complainant also sought a recommendation in relation to retrospection on rate of pay for the job for the period 27 May 2011 to 30 September 2013. In line with the conclusion, as set out above, in relation to the regularisation of his position, I am of the view that retrospection of rate of pay should apply in line with the terms of HR Circular 017/2013. Therefore, I would be recommending that the rate of pay at General Manager should be applied for all periods between 1 October 2013 and the date of regularisation arising from the implementation of the recommendation as set out below.

Having carefully considered the Complainant’s position, in line with HR Circular 017/2013, I am not satisfied that he would be entitled to retrospection of rate of pay for any period in office prior to 1 October 2013, as this would be in contravention of Point 5 of the said circular, which clearly states that “no retrospection will be considered”.

In this regard, I am satisfied that, had the Complainant been in his General Manager post for the requisite two years, at the time of the implementation of HR Circular 017/2013, his position would have been regularised, but, based on the terms of the Circular, he would not have been entitled to claim retrospection for the earlier period. Therefore, I find that it would be inappropriate to now apply this retrospection.

This view is further supported by the outcome of the Complainant’s appeal to the Independent Appeals Officer in October 2013 which confirmed him as qualifying for a post at General Manager level from that date, i.e. October 2013.

Consequently, taking all of the above into consideration, I do not consider it appropriate to recommend that retrospection should apply to the period between 27 May 2011 and 30 September 2013, as sought by the Complainant.

Finally, I have given careful consideration to the Complainant’s claim for compensation for stress and anxiety caused by the Respondent’s actions in respect of his situation. Based on evidence adduced, I accept the Complainant’s   submission that the situation in relation to his role/grade, which endured for over five years, caused him a degree of frustration and anxiety.

However, I must also take cognisance of the fact that the Complainant’s position is not unique in that there are many others within the Respondent’s organisation who found themselves in analogous positions with regard to long-term acting roles. Consequently, I am of the view that it would be inappropriate to recommend payment of compensation in a situation where it could give rise to knock-on claims from others.

I am further influenced in this regard by the strong possibility that a recommendation, which would include the payment of compensation in addition to the regularisation of the Complainant’s position/grade, could well place the Respondent in a position where they may feel it necessary to reject and/or appeal the entire recommendation. Such a scenario would then only delay the implementation of the recommendation in relation to the regularisation of the Complainant’s position and would, therefore, prolong the stress and anxiety for him.

Consequently, while having a degree of sympathy for the Complainant with regard to the impact of his situation on him, I do not consider it appropriate to recommend that the Respondent consider making a compensation payment, as sought by the Complainant.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, 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 extending for such a long period, the Complainant should now have his current, General Manager, position formally confirmed as a permanent role.

I further recommend that this confirmation should take effect from the date of acceptance of this Recommendation.

Industrial Relations Act

Regularisation of “Acting” positions/roles