ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00022555
Parties:
| Complainant | Respondent |
Anonymised Parties | A nurse | A health service provider |
Representatives | Irish Nurses and Midwives Organisation | Industrial relations manager |
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-00029166-001 | 19/06/2019 |
Date of Adjudication Hearing: 03/12/2019
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 4 years. A previous circular, under whose terms she could have been made permanent, no longer applies. |
Summary of Complainant’s Case:
In February 2015 the complainant was appointed as a temporary CNM1. In January 2019 she applied to be appointed permanently in the role but this request was declined. In 2013 following discussions with the relevant unions a national agreement was reached which provided for the regularisation of existing temporary posts. The agreement covered posts which must have been acted in on a continuous basis for at least 2 years at 31 December 2012. In a guidance document accompanying the agreement management were advised that; It is the responsibility of the line manager to ensure the temporary appointment ceases when a permanent appointment is made or if a decision to rescind the basis for the temporary appointment is made i.e post holder returns to post, decision to suppress the post, or an alternative to filling the post on a permanent basis. It is envisaged that such temporary appointments should not exceed 12 months. Hover, if a decision has been made to fill on a permanent basis the temporary appointment can remain until that process is concluded and permanent appointment made. Under point F the advice stated; When a temporary appointment extends beyond 12 months pay arrangements will progress to the next point of the PayScale… However such temporary appointments beyond `12 months should only be on an exceptional basis as they would run counter to the concept of temporary appointments. The complainant has been temporary for over 4 years. If the Protection of Employees (Fixed term Work) Act were to apply she would be permanent by now. The complainant is seeking regularisation of the post and €4000 in compensation. |
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 is not covered by that circular which was finite in its application. The complainant has acted continuously since November 2015. The employer is obliged to comply with the Public Service Management (Recruitment and Appointments) Act 2004 and cannot appoint by designation. The post has now been approved as a permanent post and the respondent proposes to advertise it as such and open to other qualified applicants. |
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 interview – been deemed suitable to carry out the role of CNM1 albeit in an acting/temporary 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. I do not believe further compensation is warranted. |
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:14th February 2020
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Acting up for 4 years. Permanent appointment |