ADJ-00021287

Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

MauraHickeyIrish Nurses and Midwives Organisation

 John O Donnell

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-00028112-001

01/05/2019

The claimant has been employed as a temporary Assistant Director of PHN since 2014 and is seeking to have her position regularised as an Assistant Director and is seeking the payment of €5,000 compensation for the delays on the part of her employer in “filling a permanent vacancy within a reasonable time frame”. The union set out a chronology of the claimant’s educational and employment history since graduating as a nurse in 1993.The claimant was on an Asst.Dircetor of PHN panel since 2011. The union contended that the post was in existence for at least 15 years and during that time had been filled on a rotational basis by PHNs. In the event the claimant took up the position of temporary acting Asst.Director of PHN in July 2014 and continued to receive Fixed Term Contract for the position since her appointment some 5 years ago. The claimant sought to have her post regularised on the 11^th.March 2019 – this was declined by the employer who invoked the Commission for Public Service Appointments 9CPSAO Code of Practise and the matter was the referred as a dispute to the WRC. In the meantime, the claimant was progressing up the incremental scale and was now on the max of the scale.

It was submitted that Circular 017/2013 provided for regularisation of workers who had been acting up for prolonged periods and provided for the cessation of long-term acting arrangements. At the time management were also required to confine any temporary appointments beyond 12 months to exceptional cases. It was submitted that previous Rights Commissioners recommendations had upheld claims for regularisation of long-term acting posts outside the time limits set down in the fore mentioned circular.

It was submitted that it was unfair for the respondent to expect a worker to act up for over a year. The claimant was diligently filling the role for over 5 years. It was contended that the respondent had failed to implement circular 17/2013 and it was advanced that regularisation would be cost neutral. It was argued that if the claimant was a temporary worker, she would have acquired an entitlement to a Contract of Indefinite Duration, and it was submitted that the post had in fact been in existence for over 15 years. It was submitted that the claimant was entitled to compensation for the employer’s delays in filling of the post. It was submitted that there were numerous precedents for digressing from the competition rules and that the employer had only moved to fill the post when the dispute was referred to the WRC.

The respondent submitted that the claimant’s substantive post was that of Public Health Nurse  .It was submitted that the post was created as a temporary Asst DPHN post in 2004 – the claimant and  3 other staff rotated in the position from 2008 until the claimant was temporarily assigned on a full time basis from October 2014.It was contended that the post was not approved as a permanent post until recently. The claimant had not been disadvantaged salary wise as she had progressed up the scale. It was submitted that the claimant did not meet the criteria for regularisation under circular 17/2013 as she had not been acting in it on a continuous basis for at least 2 years by 31.12.2012.

It was submitted that the Fixed Term Work legislation did not apply to the claimant as she is a permanent employee. It was submitted that the respondent was obliged to comply with the Public Service Management (Recruitment and Appointments) Act 2004 which requires an open and transparent selection process that is meritocratic “with posts advertised and available to the widest pool of candidates”, underpinned by equality of opportunity. It was submitted that anything other than a competitive recruitment process would undermine the statutory provisions on recruitment and selection. The employer was prepared to progress an open competition as a matter of urgency, and it was submitted that the experience gained by the claimant would be a significant advantage in the claimant’s application. It was submitted that other staff had a legal entitlement to compete for the post.

It was submitted that the respondent never got approval to advertise the post – it was advanced that the respondent had submitted numerous business cases to have the post filled but it was never approved.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. While I acknowledge the respondent’s assertions regarding their obligation to comply with statutory provisions on recruitment, I find no compelling evidence was advanced to justify some exceptional basis for filling this post on back to back fixed term contracts for a period in excess of 5 years. No plausible explanation has been advanced for the failure to approve the filling of this post having been first established on a temporary basis some 15 years ago. Accordingly, I am satisfied that this case is on all fours with the principles set out by the Labour Court in LCR 21771 and consequently, I am recommending in favour of the claimant. I recommend in full and final settlement of this complaint that the claimant be appointed as Asst.Director PHN with immediate effect and that she be paid a compensatory sum of €2,500 for the delays in the filling of the post on a permanent basis.