Complainant

Respondent

Anonymised Parties

An Administration Manager (2)

A University Hospital

Representatives

Fórsa Trade Union

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-00026709-001

01/03/2019

The Worker has been employed by the Employer since November, 2003 and was regularised into a permanent Grade V post with effect from 23 May, 2011. The Worker has been undertaking the role of Administration Manager at Grade VI on a temporary basis since September, 2011 and is seeking regularisation into that post.

The Employer contends that the Worker did not meet the criteria for regularisation in June 2014 under the provisions of Circular 17/2013. The Employer submits that in the absence of a current agreed regularisation process, there is no mechanism available to appoint her, by designation, into the vacant post.

The Worker submits that she was requested by management in October, 2011 to take on an new role in addition to her existing role. This new role involved the management of hospital waiting lists and was a Grade VI level post. Due to the moratorium on recruitment, the Worker was not paid for undertaking the higher-level post until October, 2013. The appointment letter stated that “this assignment is made on a specified purpose basis arising from the provision of Circular 17/2013 and will cease on 31 December, 2014, or when a permanent appointment is made whichever is the sooner”. The Worker has engaged with management in an effort to have her post regularised but without any success.

The submissions made by the Worker in support of her position can be summarised as follows:

·         The Employer’s guidance to management on Circular 17/2013 is very clear that temporary assignments to higher posts should normally not extend beyond twelve months.

·         The Employer has had a substantial period of time to fill the post currently occupied by the Worker on a permanent basis but has failed to do so. The Labour Court has previously held that the failure of a Respondent to act accordingly in such circumstances can give rise to the expectation that the Worker would be regularised into the post.

·         The Worker has been issued with the latest of a series of fixed term contracts on 23 January, 2019 which go back to 2013 in relation to the temporary filling of her post where the reason outlined is “pending permanent filling”.

·         The Worker’s substantive post at Grade V has been suppressed to allow for the post of Administration Manager to be advertised as one post at Grade VI level. A competition was held, and the Grade V post is now permanently filled. The Worker’s post at Grade V no longer exists so the initial basis put forward by the Employer for refusing the regularisation of her post does not stand up.

·         The Worker has competed recently for the permanent Grade VI Administration Manager post and was successfully placed on the panel and therefore, has showed that she has qualified by interview for posts at this grade.

·         This is not a cost increasing claim, although given the Employer’s current budgetary constraints, it is likely that there will be further delays in running competitions for permanent posts which could entail a continuation of her temporary status indefinitely.

·         Given the particular circumstances and the substantial amount of time the Worker has served in this role, she should not be expected to continue in the role without being regularised as permanent.

In summary, the Worker contends that continually serving in the post for more than seven years has been more than adequate time for the Employer to have filled permanent vacancies and she should now be regularised into her post at Grade VI on a permanent basis given these particular circumstances.

The Employer’s submissions in relation to the dispute can be summarised as follows:

·         In September, 2011, the post holder for the Grade VI, Administration Manager position in the hospital where the Worker is based, was redeployed and the Worker took on the vacant Grade VI duties from September, 2011.

·         Due to the wider circumstances faced by the public service at the time, many public servants took on additional duties but unfortunately there was no acting allowance or higher rate of pay applicable at that point due to the moratorium on recruitment and implementation of savings measures on public service numbers as per the terms of Circulars 10/2009 and 15/2009.

·         In October, 2014, approval for payment at the higher rate was received to pay the Worker as a Grade VI. This approval was backdated to 1 October, 2013 as an acknowledgment of the work undertaken and to ensure the Worker was not financially disadvantaged for the time she had already spent in the higher post. This retrospection was made possible by way of a generous application of points 8 and 9 of Circular 17/2013, specific to the Worker’s situation.

·         The Worker accepted this commencement date of 1 October, 2013 for paid temporary higher appointment. The Employer notes from file that it appears that the Worker did not seek to apply for regularisation under the terms of Circular 17/2013. The Employer can only adduce that she did not meet the service requirement of two years as stipulated in this Circular. There is no appeal via the established process on file.

·         From file it was confirmed to the Worker on confirmation of her temporary appointment in June, 2017 (with effective date from 1 July, 2017 to 30 June, 2018) that upon completion of the assignment: “you will revert to your substantive grade and to your original terms and conditions”. It was further confirmed that the terms of the fixed Term Work Act 2004 as it relates to successive contracts does not apply to this assignment as the Worker continued to hold a permanent contract at her substantive grade of Grade V. This was again confirmed in correspondence of June, 2018 and January, 2019.

·         In line with normal practice the Grade VI position that the Worker filled under the Temporary Higher Appointment (THA) was submitted to the National Recruitment Services in October, 2018 after Group Pay Bill approval was received. Circular 01/2018 confirms that where a temporary assignment arises due to the requirement to fill a permanent vacancy, management must seek to have the post filled permanently through the normal recruitment and selection process. It reaffirmed all appointments must be made in accordance with the Commission of Public Services Appointments Code of Practice.

·         The Worker has a Contract of Indefinite duration with the Employer and is assigned on Temporary Higher Appointment as a Grade VI and receives annual increments on the Grade VI scale and all pay increases for this grade. The THA extension issued to the Worker clearly documented that the temporary hire arrangement would cease on a particular date or when a permanent appointment is made, whichever is the sooner.

In summary, it is acknowledged that the Worker has now been assigned in a temporary higher arrangement for a number of years, but this does not infer an automatic entitlement to be appointed by designation into the higher post. In the absence of a current agreed regularisation process, there is no mechanism available to the Employer to appoint the Worker, by designation, into the vacant post. Should the instant claim be conceded it would create precedence for regularisation claims by employees throughout the organisation in all staff categories. The Employer requests that the claim be rejected in the circumstances.

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and concerns a claim by the Worker that she should be regularised in the Grade VI post that she has been undertaking on a temporary arrangement since September, 2011.

The Employer contends that the Worker did not meet the criteria for regularisation which were established in accordance with Circular 17/2013 and that in the absence of a current agreed regularisation process, there is no mechanism available to appoint the Worker, by designation, into the Grade VI post. The Employer further contends that Circular 01/2018 (which was issued in January, 2018) provides that where a temporary assignment arises due to the requirement to fill a permanent vacancy, there is a requirement to hold an open competition to fill the vacancy.

In considering this matter, I note that the Labour Court addressed a similar set of circumstances to those that prevail in the instant case in its recommendation in LCR21771. In this case the Labour Court held that: “The Court therefore cannot support the proposition that the Claimants, having been retained on temporary assignment/appointment for grades higher than their basis grade for period of up to seven years, and since 2013, outside the terms of Circular 17/2013, should now be subject to an open competition in order to retain the grade they have occupied for periods of between approximately five and seven years”.

In the instant case, I note that it was not in dispute that the Worker has been carrying out the duties of a Grade VI level post since October, 2011 and has been paid an acting up allowance for the higher level post with effect from 1 October, 2013. The Worker has been issued with a series of specified purpose contracts by the Employer over the duration of the period that she has held the temporary higher appointment to the Grade VI post. It was not in dispute that the Worker has carried out these duties in a competent manner and that she is fully qualified and capable of discharging the duties of the higher-level post.

I note that it was common case that the Worker did not meet the service requirements of two years as stipulated in Circular 17/2013 in order to apply for regularisation into the higher-level post. In the circumstances, it is clear that there is no other mechanism currently available to the Worker to facilitate her regularisation into the higher-level post other than to participate in an open competition for the post. I note that the Employer was unable to confirm if/when an such an open competition would be conducted, and therefore, it is likely that the Worker’s temporary higher appointment will continue indefinitely into the future.

It is clear that Circular 17/2013 and Circular 01/2018 both provide that a temporary assignment cannot exceed beyond 12 months unless there are exceptional circumstances. I am satisfied that the Employer has not established the existence of any exceptional circumstances within the meaning of these Circulars which would justify the continued assignment of the Worker to the higher grade on a temporary basis for a period of approx. eight years. In the circumstances, I find that the appointment of the Worker on a temporary higher arrangement for a period in excess of 12 months has not been in compliance with the provisions of Circular 17/2013 and Circular 01/2018.

Having regard to the foregoing, and in the specific circumstances of this case, I find that the Worker is entitled to regularisation in the higher-level Grade VI post that she has held for approx. eight years and that the appointment should take effect from the date of acceptance of this recommendation.

I recommend that the Worker is entitled to regularisation in the higher-level Grade VI post that she has held for approx. eight years and that this appointment should take effect from the date of acceptance of this recommendation. This recommendation applies to the specific circumstances of the Worker and should not be taken to have a wider implication.

Industrial Relations Act 1969 – Section 13 – Trade Dispute – Regularisation – Higher Grade Post