Complainant

Respondent

Anonymised Parties

An Emergency Medical Technician

A Healthcare provider

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00023254-001

16/11/2018

The following is a summary of the Worker’s case.

The Worker commenced employment with the Employer in 2000 and later moved to a lead health care provider of emergency medical services, which is a supervisory post and is her substantive post (‘post 1’). She has been acting up in an operations manager post (‘post 2’) since January 2015.

In 2011 the Worker applied for and was interviewed for the position of permanent operations manager and was placed 23 on the national panel. Three permanent posts in the Region she was working were advertised in April 2013 and she expressed an interest to fill one of the positions. Two posts were filled, one post was left unfilled even though she was eligible to fill the post. She said her situation was ignored.

In January 2015 she was moved to fill a vacancy where a Colleague had transferred out. She was told she could fill the role (‘post 2’) as she was on the national panel. She said that she did not receive any increase in salary for the higher grade or an acting up allowance. In March 2015 the Employer again advertised a permanent post and the Worker expressed an interest. Again, she was not appointed to the role and is unsure if the post was ever filled.

She learned in early March 2016 that her panel was going to expire, and she sought clarification from her line manager, Mr. A. He inquired and was informed that the national recruitment service tried to fill from her panel, but it was now exhausted. She claims that she was still left on the panel, and her chance to get a permanent post had now expired with the panel deemed exhausted. She claims that the advertised permanent position, in her region, was left unfilled and she was covering one of those posts.

The Worker lodged a formal grievance with her employer over the process for filling permanent positions and had a meeting on 19 December 2016 with the Acting Assistant Head in that area. After a delay, she received a response to say he was unable to decide on her grievance and asked her to contact the Acting Head in that area. She also at that time received a letter which stated that due to an oversight she should have been issued with a letter of her terms and conditions with effect from 15 May 2015 (post 2). She viewed this letter as a retrospective attempt to prevent her from being paid for the cover she was providing in (post 2).

She said that she contacted the Acting Head in that area but got no reply and became totally frustrated with what she claims is a strong bias against her.

She said that shortly after this a Temporary (post 2) position was advertised in her region. She went for the post and was placed first on the panel in August 2017. She said there was a delay in filling the post and she learned on 11 October 2017 from a colleague that he was in line for the (post 2) temporary placement. The Worker was subsequently offered the Temporary (post 2) position in December 2017. However, she would not be paid at the grade. She contacted her employer to outline her disappointment that she was offered a post following a competition for a position she already held, and she was not going to be paid for that. She accepted the (post 2), commencing on 18 December 2017 but sought to address the terms and conditions. In her view she needed to try to remain in the post she had held for almost 3 years with the hope that it might eventually lead to a formal permanent position with the appropriate salary.

On 19 December 2017, a national competition was announced for (post 2) positions. She lodged her grievance with her employer. She fell critically ill and went out on sick leave on 23 April 2018. The Worker’s husband was placed into her acting up (post 2) position while she was out on sick leave. Her husband was approved to be paid at the higher-grade salary for the entire period of cover.

The Worker interviewed at (post 2) grade in the national competition but was unsuccessful in getting on the panel; although she had now worked the (post 2) grade for almost 4 years. She queried the interview process but felt she was not being supported by her regional manager and did not get the appropriate answers. Her husband was also interviewed for the national competition, he received direct feedback from the board that his regional manager had spoken highly of him. He was subsequently placed on the national panel.

The Worker feels aggrieved that after 19 years’ service with the Employer, 14 years of which were in a supervisory level and she had sought to be paid for work at (post 2) but was refused. Whereas, her husband stepped into the role she filled while she was out sick, to act as cover and was paid the higher grade pay.

The Worker is seeking to be regularised as an operations manager (post 2) on the appropriate pay scale.

The following is a summary of the Employer’s case.

The Employer said that the Worker is a lead health care provider of emergency medical services (post 1) and her salary is made up of a basic pay plus a number of allowances which have been agreed at National level.

The Employer said that since 15 May 2015, the Worker took up assignment as an operations manager (post 2) on an experiential placement following an expression of interest process, on her existing terms and conditions (post 1) to allow her to gain some experience in a management role. The confirmation letter was not sent until 5 September 2016, due to error.

The Employer said that the letter dated 5 September 2016 states that the offer to the Worker was explicitly “not a job offer” and the vacancy may be filled from a national recruitment panel and that her (post 1) rate of pay would apply.

The Employer said that there is a collective agreement in place where all vacancies that arise for both (post 1) and (post 2) positions are to be filled through a national public recruitment competition. It said that experiential placements are currently being filled as agreed by these national public recruitment competition panels only.

The Employer said that the Worker was a candidate in a national competition for a (post 2) position but was unsuccessful. The Employer claims that under the terms of her experiential placement she is not entitled to retention in the post or payment in accordance with (post 2).

The Employer said that there are currently a number of staff in this experiential placement arrangement and there would be significant knock on effects if I were to rule in the Worker’s favour accordingly. The Employer also claims that a concession here would go against the principles of the code of practice for public service appointments.

I note that the Worker wants to be formally appointed to the position in which she has been serving, on an acting up capacity, since late January 2015. She wants to be regularised to this position and to be paid the appropriate pay for the grade accordingly. She said that she has become frustrated by the lack of engagement by the Employer.

The Employer said that the Worker was treated equally to all others in how her application for the filling of permanent vacancies at the (post 2) level grade were treated. I note there is a collective agreement in place, agreed at national level, where all these types of vacancies are now filled through public appointment competitions. The Employers said that there will be a knock-on consequence if I were to regularise the Worker.

I find that there are a multiply layers to the Worker’s dispute. She has attempted to get answers to questions about her position on panels, panels exhausting, and her terms and conditions; many of which were not answered or adequately handled. I note the multi-agency involvement in the recruitment processes and a lack of cohesion between these agencies in particular the communication with the Worker and at times communication with her supervisors.

I note the period of time that the Worker has held the acting up position for.

I understand that she is extremely disappointed that having panelled successfully that she was not placed off the national panel to fill a post in her region for a post that remained unfilled.

I note that when the Worker went out on sick leave and her temporary replacement, who happened to be her husband, was offered the appropriate remuneration and terms and conditions for the post. Although the Worker had held the post for 3 years without the same terms and conditions or remuneration. That I find incredible.

I note that Employer’s position that the offer of the (post 2) was not in itself an offer of an appointment. I expect that the Worker was aware of that on taking up the post, notwithstanding the delay in receiving a letter to that effect.

I note that there is an agreement in place between the Employer and the Worker’s Union in relation to how permanent positions are to be filled. I have to be observant of the national agreement in place and cannot without extraordinary grounds trump that agreement with a Recommendation which would undermine it.

However, having taken all into consideration, I have decided that I cannot accede to the request for regularisation of the Worker in to her current (post 2). However, I do recommend that her frustration and efforts are recognised and that she is put on the same footing as what her replacement, her husband, was offered while she was out on sick leave. Namely, she shall be paid and receive the same terms and conditions as a permanent post holder and that shall be back-dated to the last day of January 2015.

I recommend that she shall continue to hold that post with those terms and conditions until that post is filled permanently.

I also recommend a payment of compensation of €3,000 (three thousand euro) for the lack of urgency and clarity in dealing with her grievance. I make this Recommendation with the intention that the Worker can put all this behind her and it will also allow the Employer start with a clean slate going forward.

I make this Recommendation on the specifics of this case, and for this case only, and it shall not set a precedent in any other dispute.

Industrial Relations Acts – regularisation into post – well founded – pay – compensation.