ADJ-00018561

Employee

Employer

Anonymised Parties

Employee

Health Sector Employer

Representatives

PadraigMulliganFórsa Trade Union

 Karen Coen HR HSE

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-00023902-001

07/12/2018

The claim is for regularisation of the employee in her current post by way of conversion from an Acting Grade 1V to a Permanent Grade 1V in her current place of work.

The employee is employed with the HSE since 1997. At all times her substantive post has been as a clerical officer in various locations. She was on a panel for relocation to an office nearer to her home when in 2011 she was offered a suitable post in the location of her choice and an agreed transfer was approved. Her claim is that in the post to which she transferred she has always performed the full range of duties of the Grade IV post vacated following a voluntary early retirement of the previous post holder in 2010. Following negotiations under the Haddington Road Agreement circular 17/2013 provided regularisation for those in acting positions for a two -year period ending December 2012. The employee did not qualify under the terms of the circular, missing out by a few days. Following representations on her behalf, the employee was appointed as a Grade IV with an allowance with effect from July 2016. Forsa continued to make representations on her behalf seeking permanent appointment as a Grade IV based on her lengthy service in the post; that management locally recognise that she performs all of the duties of the grade IV role to the highest standard; the negative impact on her pension entitlements where only her allowance over three years would form part of her pensionable pay and she would be eligible for retirement at age 60 in 2020. Job evaluation was offered as a solution, but the union has rejected this option as it would set a precedent that if a Grade IV post became vacant it could be filled by a grade 3 and then would have to be re-evaluated. Reference was made to the ‘exceptional circumstances’ clause which allows for temporary contracts to be issued for more than twelve months. Forsa and the employee state they are not aware of any such exceptional circumstances. LCR 20862 and LCR 21771 were cited as precedents which supported the claim made in this case.

The post to which the employee transferred in 2011 was vacated following the early retirement of the previous postholder in December 2010. Early retirement under the scheme in place at that time was a cost-saving measure following which the post could not be replaced and funding was withdrawn. As the employee could not qualify under Circular 7/2013, she remained as a clerical officer grade 3-her substantive post and the grade on which she had transferred. The first record of a request for regularisation is December 2015. The employee was offered job evaluation. In June 2016, Forsa made representations, management sought approval for an acting post and the employee commenced the acting role with effect from July 26^th, 2016 with an allowance. In 2017, all staff in acting grade IV roles were informed of a competition to facilitate those who had been acting in a higher grade. The employee did not apply. The offer of job evaluation remains. There is no mechanism to facilitate regularisation outside of the Code of Practice. At the hearing of this case, HR confirmed that the job evaluation scheme is in place, with a lead in time of approximately eighteen months for an evaluation to be completed. Expressions of interest have not been sought from those on the national panel and therefore it is not known if any person on the panel would be interested in a Grade IV post in Belmullet. If the post were recategorized as a permanent Grade IV it would have to be advertised whereas the ongoing categorisation of the post as Acting has allowed the employee to remain in the post.

Accepting that the early retirement scheme in place in 2010 was intended as a cost saving measure, it is not unreasonable to ask how long a period is required to justify the maintenance of the original cost saving measure in place. In this case, there was no Grade IV replacement for a short period followed a period when the role was fully fulfilled by the employee at a lower grade for a period of over five years until July 2016.  Circular 7/2013 allowed for regularisation after a period of just two years. If the employee were a fixed term worker she would be eligible for a CID after four years. By any comparable yardstick, the employee has more than served her time in an acting position, on an allowance or with no payment at all. Accepting that job evaluation was proposed as a sincere effort to assist the employee, job evaluation is a measure to assess the grade of a post where this may be in doubt. There is no doubt that management agree the employee is performing all the duties of the Grade IV post in this instance in which case job evaluation is not necessary. There remains the use of the term ‘exceptional circumstances’ justifying the ongoing use of twelve-month contracts cited by the employer. The Labour Court addressed a very similar case in LCR 21771 where it found that the Court could not ‘support the proposition that the Employees in that case having been retained on temporary assignment /appointment to grades higher than their basic grade for periods up to seven years and outside the terms of circular 7/2013 should now be subject to competition in order to retain the grade they have occupied for five to seven years.’ For the reason already addressed in these conclusions, the alternative option to a competition-job evaluation is also deemed inappropriate to the circumstances of this case. The Labour Court in that case could not find exceptional circumstances for not regularising those post holders into permanent posts, and neither can this adjudicator in this current case. In summary, the HSE has achieved savings, the grade of the duties of the employee is not in dispute and there are no exceptional reasons why the employee should be retained in an ongoing temporary grading position.

On the final aspect, the date of implementation of regularisation, the Labour Court in LCR 20862 and 21771 cited by Forsa recommended dates of their own recommendation or the date of acceptance of the recommendation as dates for regularisation. Having adopted the approach of the Court in those recommendations regarding regularisation, no reason can be seen for departing from the general approach to the date of implementation for this current case. Given the dispute was lodged in December 2018, a short period of retrospection seems merited. The assertion that the employee is considering retirement and is seeking retrospection to enhance her pension entitlements is not found to be a reason to grant significantly greater retrospection than was applied by the Labour Court in the cases cited.

For the reasons set out the conclusions above, taking into account all the available information, I recommend that the position of the Employee as an Acting Grade 1V be regularised with effect from May 13, 2019.