ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017548
Parties:
| Complainant | Respondent |
Anonymised Parties | A Nurse manager | A hospital |
Representatives | Irish Nurses and Midwives Organisation | Industrial Relations Officer, HSE |
Complaint(s):
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-00022683-001 | 17/10/2018 |
Date of Adjudication Hearing: 19/03/2019
Workplace Relations Commission Adjudication Officer:Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The complainant has been acting in a more senior role for approximately 13 years. A previous circular, under whose terms she could have been made permanent, no longer applies. |
Summary of Complainant’s Case:
The complainant commenced Acting CNM1 on 1st May 2005 relieving a fellow nurse on maternity leave. The post holder returned to her role for one month before she was reassigned. The complainant resumed as CNM1 and has been at that grade since then apart from a short time assigned as Acting CNM2. A circular which issued in 2013 was intended to address long term acting positions, however, the complainant’s claim under this circular was rejected. The complainant has been acting/temporary CNM! For approximately 13 years with one short break. The substantive post has been vacant for that period of time. Management has let the acting arrangement drag on for five years since the circular issued. Regularisation of the position would be cost neutral. |
Summary of Respondent’s Case:
The complainant has sought confirmation of her appointment as CNM1 on a permanent basis. There is no pathway open to the employer to process such a claim. The employer engaged in regularisation of acting positions in 2013 but the complainant did not meet the defined criteria at the time which required that a post must have been acted in for at least 2 years at 31st December 2012. The complainant has acted continuously since November 2011. The employer is obliged to comply with the Public Service Management (Recruitment and Appointments) Act 2004 and cannot appoint by designation. |
Findings and Conclusions:
Circular letter 017/2013 was designed to regularise the employment of a large number of the employer’s staff nationwide, who had been in acting or temporary roles for considerable time. It was the express intention of the employer that there should not be a recurrence of this issue in the future and therefore the application of the circular was not open ended. Had the Circular continued to operate it is agreed by both parties that the complainant would, in all likelihood, have been successful in seeking to have her position regularised by now. The aspiration of the employer that there would not be a recurrence of the prevalence of acting up or temporary positions has clearly not been realised. However, nothing has been done to replace the circular or to reactivate it. The employer has argued that it is not possible to appoint someone by designation. I note that many exceptions were made to this general rule under the 2013 circular which was intended to regularise circumstances such as those facing the complainant in this case. In my view, the issue is not about appointment or about the appropriate selection process as the complainant has already – by whatever means – been deemed suitable to carry out the role of CNM1 albeit in an acting capacity. A permanent vacancy exists and it is unreasonable to expect the current situation to carry on indefinitely with the accompanying uncertainty for the complainant. The complainant cannot be held accountable for the failure of the employer to correctly implement the selection procedures and therefore I conclude that the complaint is well founded and the complainant should therefore be appointed to CNM1 on a permanent basis. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that, in light of the exceptional circumstances in this case, the complainant be made permanent in the CNM1 role with immediate effect. |
Dated: 3rd May, 2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Long term acting up. |