Complainant

Respondent

Anonymised Parties

Senior Manager

A Hospital

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-00028606-001

22/05/2019

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

CA-00028608-001

22/05/2019

The Complainant is a senior manager who commenced working for the Respondent on 1st May 2003.

The Complainant is acting up as an area senior manager since 2014. He is seeking that his position be regularised. His conditions are now correct for his acting up role however, there is no recognition of permanency in the role and his pension entitlements reflect his previous senior manager role.

The Complainant relies on LCR21771 dated 9th August 2018 and Circular 001/2018 and 017/2013. Circular 001/2018 states that temporary assignments cannot extend beyond 12 months unless there are exceptional circumstances. After so long the Complainant has missed opportunities. His representatives sought resolution of the matter at local level without success. The Complainant has not received a formal outcome to his request.

The Respondent concluded an agreement with the Unions representing the area senior managers for a structure consistent with the provisions of “Vision for change”. There are 18 appointments to the area senior manager roles. The area senior manager was appointed in 2013 to the role, however, he was then seconded to support a transition of the services in 2014. The transition has been extended to 2020. The transition is almost concluded and should conclude in 2020.

The Complainant signed an appointment form to the role accepting the temporary appointment, a fixed-term and a specific purpose contract and the Unfair Dismissals Act 1977 will not apply to the termination of the temporary appointment.

The Complainant has received an annual bursary of 3,000 euro for the role. The Respondent says the appointment is exceptional as it is necessary to support a unique transition of the service. The Respondent cannot issue a permanent contract of employment as the area senior manager has a legitimate expectation to resume this role when the transition is complete. The Respondent pursuant to its recruitment license must advertise posts to all staff who meet the eligibility criteria.

The Respondent says the Complainant will not be disadvantaged in his pension entitlement and will be treated in accordance with Circular 018/2016.

I have considered carefully the written and oral submissions of the parties.

The Complainant has been carrying out an area senior manager role in an acting up capacity since 2014 which is over 6 years. He is receiving the same financial terms as an area senior manager and his pension will be dealt with in accordance with Circular 18/2016 which takes into account the difference in salary scale.

I accept that the Complainant’s appointment is exceptional due to the transition of the service which will conclude shortly. The incumbent formerly in this role has a right to return. However, the Complainant is now acting up for a significant period and is understandably frustrated.

In the circumstances, and given the transition should complete shortly, I recommend the Respondent inform the Complainant whether the former incumbent will be returning to the role of area senior manager as soon as possible. If the incumbent is not returning to the role, I recommend a competition is opened for the area senior manager role without delay and the Respondent gives the Complainant any assistance required for his application for the role.

I recommend the Respondent inform the Complainant whether the former incumbent will be returning to the area senior manager role as soon as possible. If the incumbent is not returning to the role, I recommend a competition is opened for the area senior manager role without delay and the Respondent gives the Complainant any assistance required for his application for the role.

Acting up, regularisation, secondment, right to return to role, competition