LCR22227

1.Appeal Of Adjudication Officer Decision No. ADJ-00021804

BACKGROUND:

2.The Worker has been employed with the HSE since May 2003. Between 2005 and February 2014 he was employed as an Assistant Director of Nursing Practice Development in the Central Mental Hospital (CMH), Dundrum, Co. Dublin.
In February 2014 he took up the position of Area Director of Nursing on an acting basis, based in the Central Mental Hospital in Dundrum. The previous holder of the position was moved from the CMH to the position of Senior Operations Manager, in the HSE Mental Health Division, St Loman’s Hospital, Lucan, Co Dublin.

The Worker has continued to fulfil this role until the present date. In early 2016 the package of allowances associated with the role were consolidated into his salary. As such, his terms and conditions are now correct for the role of Area Director of Nursing, with the following exceptions;

• No recognition of permanency in the role,

• His pension entitlements reflect those of an Assistant Director of Nursing Practice.

WORKER'S ARGUEMENTS:

The HSE and trade unions have agreed (see HR Circular 001/2018) that only in exceptional circumstances should temporary assignments extend beyond 12 months. No exceptional circumstances have been outlined in this case.

The Appellant has fulfilled the role of Area Director of Nursing in the Central Mental Hospital in Dundrum for six and a half years, equivalent to 20% of his career.

This is a cost and WTE neutral solution with no backfilling of any consequential vacancies.

The Worker is seeking the security of permanency in this role and confirmation of his pension entitlement as an equivalence to his peers in the role of Area DoN.

COMPANY'S ARGUMENTS:

The Worker’s temporary contract is exceptional in nature and necessary to cover a unique period of transition in Mental Health Services.

National Forensic Services cannot issue the Worker a permanent contract of employment for Area Director of Nursing, National Mental Health Services when the substantive post holder holds such a contract and has a legitimate expectation that he could resume this role when the transition in Forensic Services is complete.

The HSE is obliged under its recruitment license to ensure all posts are advertised and opportunities are given to all staff who meet the eligibility criteria to compete for posts.

The Worker will not be disadvantaged in terms of pension entitlement.

While in a temporary appointment post his substantive grade would remain that of Assistant Director of Nursing and this is the salary that would be applied in terms of calculation of retirement benefits.

The difference between that salary scale and the higher Area Director of Nursing pay scale would be treated as a ‘pensionable allowance’ and would be included in the ‘best 3 in 10’ process.

DECISION:

This is an appeal by a Claimant against the Recommendation of an Adjudication Officer ADJ-00021804, in a claim for regularisation of his post as Area Director of Nursing, which post he has held since February 2014. HSE dispute the Claimant’s claim, stating that he is employed as a permanent Assistant Director of Nursing and is engaged temporarily in the role of Area Director of Nursing due to the exceptional circumstances applying.

The Adjudication Officer rejected the Claimant’s claim and upheld HSE’s position that there were exceptional circumstances for his temporary appointments. The Adjudication Officer recommended that a competition should be made available to him to apply for the role and HSE should give him any assistance required to compete for the role. The Claimant appealed that Recommendation and disputed the existence of exceptional circumstances and claimed that he should be awarded permanency in the role of Area Director of Nursing.

Background

The Claimant commenced employment at the National Forensic Mental Health Service on 25th August 2003 as CNMII, as an Assistant Director of Nursing on 26th October 2007, and temporary appointment to Area Director of Nursing on 1st February 2014 in the Central Mental Hospital, Dundrum. On 15th February 2019 he sought a contract to reflect the permanent nature of his tenure as Area Director of Nursing.

Position of the Parties

Mr Rory Kennedy, B.L., instructed by Powderly Solicitors, on behalf of the Claimant submitted that the Claimant has continued to fulfil the role of Area Director of Nursing since February 2014 to the present day and has a genuine and reasonable expectation of permanency in that role. Mr Kennedy stated that in 2016 his package of allowances associated with the role were consolidated into his salary, therefore, his terms and conditions are correct for the role of Area Director of Nursing, with the exception that (i) he has no recognition of permanency in the role, and (ii) his pension entitlements reflect those of an Assistant Director of Nursing.

Mr Kennedy made reference to HR Circular 001/2018 which provides that only in exceptional circumstances should temporary assignments extend beyond 12 months. He submitted that no exceptional circumstances have been outlined by HSE to justify the Claimant’s role as a temporary position. He contended that the fact that the person he is replacing (Mr B) is also acting up, does not create an exceptional circumstance. He disputed the contention that Mr B has an expectation to return to the role. He said that the Claimant who had been in the role for over six years, was promoted to that role in 2016 using the appropriate forms and authorisation was granted and he is classified as ‘Director’ on payroll. Mr Kennedy contended that the situation would probably have stayed the same until his retirement if the Claimant had not sought to confirm his pension rights when he wrote to management on 15th February 2019 requesting that his contract be amended to reflect his permanent status by regularising his position and be provided with the appropriate contract for his role.

Mr Kennedy said that in 2016 the Claimant was informed by Mr R, Assistant National Director, HSE Mental Health Services that he was being promoted, on a full-time permanent basis, to the role of Area Director of Nursing. The Claimant subsequently in agreement with Mr R and HR/NRS advertised his previous post and filled that position. Although the Claimant was paid the salary and allowances of Area Director of Nursing, he never received an updated contract. On 31st May 2016, the Claimant signed HR102 Form “Change to Employees Terms and Conditions”, this included “promotion” as the sole reason for the contract change. However, he was also required in 2016 to sign HR103 Form “Temporary Appointment”, which he said was on the advice of HSE payroll, for the purposes of regularising his allowances. In February 2020, he again signed a HR103 Form, under threat of non-payment of salary.

Mr Emmet Whelan, Byrne Wallace Solicitors, on behalf of the HSE, stated that the Claimant’s temporary contract is exceptional in nature and necessary to cover a unique period of transition in Mental Health Services. He outlined for the Court the details of the “exceptional basis” relied upon. An agreement was concluded in 2012 between the HSE and Unions representing Nurse Managers in Mental Health Services to introduce a revised nurse management structure consistent with the provisions of "Vision for Change". It was agreed that a total of 18 appointments to positions of Area Director of Nursing, consisting of one for each Integrated Service Areas and with one post for the National Forensic Mental Health Service (NFMHS). Following a selection process, in May 2013 Mr B was appointed to the role of Area Director of Nursing NFMHS, on a permanent basis. In February 2014, Mr B was re-assigned on a temporary basis from his post as Area Director of Nursing in the NFMHS to work on administrative work on the Mental Health Divisional Management Team, to support the Head of Operations and Service Development initially for 6 months. In 2016, Mr B was appointed to oversee the transition from the Central Mental Hospital to Portrane and accordingly, the Claimant’s temporary re-assignment was extended until 6^thFebruary 2021. Mr Whelan explained that this was for the purposes of supporting the work of the Mental Health Division with the transition of the NFMH services to the state-of-the-art facilities in Portrane. At the hearing before the Court, Mr Whelan said that the Claimant’s contract is likely to be extended to 2021 or 2022.

Mr Whelan stated that the National Forensic Services cannot issue the Claimant with a permanent contract of employment for Area Director of Nursing NFMHS, when the substantive post holder holds such a contract and has a legitimate expectation that he could resume this role when the transition in Forensic Services is complete. It stated that the HSE is obliged under its recruitment license to ensure all posts are advertised and opportunities are given to all staff who meet the eligibility criteria to compete for posts, therefore the Claimant must compete for a position as Area Director of Nursing.


Mr Whelan stated that the Claimant signed approval Form HR 103A in 2016 for his temporary appointment to the role of Area Director of Nursing for the period from February 2014 to February 2017. This form included an employee declaration in Section 6 confirming his understanding and acceptance that his appointment to the role of Area Director of Nursing was temporary in nature. This assignment was extended to February 2020 and further extended to February 2021, where he signed new Section 6 declarations.

Mr Whelan said that for the duration of Mr B's re-assignment, the Claimant has received the correct remuneration of the role of Area Director of Nursing which attracts an annual bursary of €3000 and attracts full pension benefit.

Mr Whelan stated that for pension purposes, the Claimant will be treated in accordance with the terms of HSE HR Circular 018/2016 in terms of his temporary appointment. While in a temporary appointment post his substantive grade will remain that of Assistant Director of Nursing. The difference between that salary scale and the higher Area Director of Nursing pay scale will be treated as a 'pensionable allowance' and will be included in the 'best 3 in 10' process. An annual figure based on the best 3 years of total allowances paid in the 10 years prior to retirement would be added to the basic salary to arrive at the pensionable remuneration figure used to calculate the retirement benefits due.


Findings and Conclusions of the Court

Having given careful consideration to all aspects of this case, the Court notes the following:-

• 
  i.The Claimant has been in the role of Area Director of Nursing since February 2014 and HSE informed the Court that it cannot give a termination date for his temporary assignment, which at this stage is likely to continue until 2021 or 2022.
  ii.The Claimant’s substantive role as Assistant Director of Nursing in Practice Development was advertised as approved by HR/NRS in 2016 and filled on a permanent basis in 2018.
  iii.While it may have been an error to complete HR 102 Form in 2016 indicating a “Change to Employee Terms and Conditions” which stated that the reason for the contract change for the Claimant was “promotion”, he was not informed of that error and only became aware of HSE’s position on that form prior to taking this case.
  iv.The Court understands and accepts the Claimant’s contention that the reasons for the completion of HR 103 Forms on three occasions was connected, in part at least, to regularising his payroll, as the first form signed on 22nd July 2016 backdated his improved salary to 3rd February 2014, and the third from signed on 26th February 2020 followed enquiries he made on 21st February 2020 when his salary was amended to reflect a downgrade in his role, which was rectified on completion of the form.
  v.HSE HR Circular 17/2013 requires that temporary contracts for posts at a higher grade that extend beyond 12 months will only apply on an exceptional basis as it would run counter to the concept of temporary contracts.
  vi.In maintaining the Claimant on temporary contracts for posts at a higher grade, HSE did not seek the necessary prior sanction from the National HR for consideration and onward transmission, as appropriate, to the Department for written sanction, as required by HSE HR Circular 18/2016.

While the Court accepts that the transition of the National Forensic Mental Health Services to a new campus is a major undertaking which required specialist expertise, the length of time the Claimant has been on temporary contracts, the continuous extensions of such contracts, the lack of compliance with the required approval coupled with the uncertainly surrounding the likely duration of his temporary status and the filling of his substantive role on a permanent basis, lead the Court to conclude that the Claimant has a genuine expectation that he would retain that grade on a permanent basis. Therefore, the Court is satisfied that the Claimant has a right to be regularised in his position as Area Director of Nursing, without the uncertainly of having to compete for such a position.

Accordingly, the Court recommends that the Claimant should be regularised in the acting up role of Area Director of Nursing and that this should take effect from the date of acceptance of this Decision. This Decision reflects only the specific circumstances of the Claimant and should not be taken to have wider implications for other employees.

Therefore, the Court finds that the Claimant’s appeal is successful, and the Recommendation of the Adjudication Officer is overturned.

The Court so Decides.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
NJ	______________________
26 JUNE 2020	Deputy Chairman