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-00022878-001

26/10/2018

The Complainant is employed by the Respondent as Acting Director of Nursing since 2012. Her union is seeking a recommendation under the Industrial Relations Act that she is appointed to the post in a permanent capacity.

The Complainant is employed by the Respondent as Acting Director of Nursing since 2012. Her union is seeking a recommendation under the Industrial Relations Act that she is appointed to the post in a permanent capacity

The Complainant was appointed acting interim Director of Nursing in February 2012 following a successful competition. She was initially appointed on an acting basis pending the advertisement of the substantive post. However, in the period of time from 2012 to 2019 the Respondent has not held a competition for the Director of Nursing post. The Complainant has advocated on several occasions that the post be advertised. In 2015 the Respondent advertised the permanent filling of the post and the Complainant applied for that position. However, the Respondent failed to hold interviews to fill the post and the competition was not progressed. 

The Union stated that the Respondent’s Guidance document circular 017/ 2013, which issued arising from a collective agreement reached between management and unions, was designed to regularise long-term acting posts is relevant. In 2013 the Complainant did not have qualifying service in an acting post for the regularisation of her acting post. The Union submitted that the Respondent is in breach of the circular which provides for the regularisation of temporary posts and that the Complainants is acting in the post for 7 years, and the circular provides that where temporary occupation of a higher post occurs, it should not exceed 12 months except in exceptional circumstances.  No exceptional circumstances exist which justify the failure to fill the post in the normal manner.  The Complainant has endeavour herself to have the post filled in the normal manner, however the Respondent has failed to do so without any adequate or indeed any excuse. It is submitted that, in the circumstances, that the Complainant is entitled to a contract of indefinite duration. I was referred to the cases of ADJ-00012940, ADJ-0003150 and the Labour Court recommendation in the case of LCR 21771 which have similar facts to this case.

It was submitted that the regularisation of Complainant’s post to a permanent post is cost neutral as she is on an incremental scale.

The Respondent did not dispute the contents of the union submission. It submitted that talks are ongoing at a national level in relation to temporary appointments. It was accepted however that the matter could proceed to hearing under the Industrial Relations Act.

I note that the Complainant was appointed to the temporary position of Director of Nursing in February 2012 and she is now over 7 years in the position. I note that the matter of temporary appointments was the subject of an agreement between management and the trade unions, resulting in the issuing of a Guidance Document Circular 17/2013 by the Respondent, which provides that temporary appointments should not extend beyond 12 months except on an exceptional basis. Having considered the evidence, I am satisfied that the Respondent is in breach of its own rules in relation to temporary appointments and has not put forward an exceptional basis for continuing with the situation.

Therefore, in all the circumstances of this case and as a basis for resolving the dispute, I recommend that the Complainant’s employment be regularised as a permanent Director of Nursing with immediate effect. This recommendation reflects the specific circumstances of the Complainant’s position and should not be invoked or relied upon as having wider implications.

Therefore, in all the circumstances of this case and as a basis for resolving the dispute, I recommend that the Complainant’s contract of employment be regularised and that she be appointed as a permanent Director of Nursing with immediate effect. This recommendation reflects the specific circumstances of the Complainant’s position and should not be invoked or relied upon as having wider implications.

Industrial Relations, Regularisation of Acting Positions,