ADJ-00024799

Complainant

Respondent

Anonymised Parties

A Worker

Health Service Provider

Representatives

  The claimant represented himself

J.J. Tevlin Health Service Executive

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-00031557-001

14/10/2019

The claimant made the following submission at the hearing:

Introduction:

His Stage 1, Stage 2 and Stage 3 Grievances were made on foot of Labour Court Recommendation – LCR 21771, copy provided and its relevance to his own situation.  He believed it creates precedence for his case.

Stage 1 of his grievance was heard by Mr.S.D , General Manager,  on Wednesday, 3rd October 2018 following which he received his determination and recommendation on Thursday, 25th October 2018. 

Stage 2 of his grievance was heard by Ms.E.F, Assistant National Director, on  Friday, 3rd May 2019 following which he received her determination and recommendation on Thursday, 9th May 2019. 

Stage 3 of his grievance was heard by Mr.P.B.  Senior Employee Relations Executive, on Friday, 30th August 2019 following which he received his determination and recommendation on Thursday, 12th September 2019. 

Background

The claimant commenced in a temporary appointment as NBPU Manager with effect from the 25th September 2013 in line with the respondent’s Circular 17/2013 - Regularisation of Acting Posts in Conjunction with the Introduction of New Arrangements for the Short Term Filling of Posts and the Re-introduction of Senior Staff Nurse Positions.  The vacancy in this position became available through the retirement of the previous NBPU Manager.  As this was an ill-health retirement, he was covering the position on an ad-hoc basis in excess of 50% of his working time for a minimum of the 12 months prior to his retirement.

In addition to the duties associated with his temporary appointment to the role of NBPU Manager, it also included those of his substantive post as Project Co-ordinator for the NW Pension Review Group as this position would become vacant as a result of his temporary assignment and was not going to be filled.  He accepted this in good faith and took on and carried out the full scope of duties of both roles (Grade V and Grade VI) with the effect that the employer was saving the salary of a Grade V by having him completing the duties of both roles and not having to fill the vacant Grade V position.

He asserted temporary appointment was, without question, continuously extended as follow:

·       1st October 2013 – 30th September 2014 (12 months)

·       1st October 2014 – 30th September 2015 (12 months)

·       1st October 2015 – 28th February 2016 (5 months)

·       29th February 2016 - 30th September 2016 (7 months)

·       1st October 2016 – 31st March 2017 (6 months)

·       1st April 2017 – 30th June 2017 (3 months)

This is a total of 45 months (3.75 years or 3 years & 9 months).

Copies of all extensions to his temporary appointments were provided.

In February 2017, interviews were held for the position of NBPU Manager.  From this interview process no candidate was recommended for the position.  At no stage during his tenure as NBPU Manager from October 2013 up to and including the date of interview was his performance or professional knowledge in this role questioned.  In fact, by virtue of the continuous renewal of temporary appointments assigning him to the role of NBPU Manager it would indicate that he was carrying out the duties and the responsibilities of the post to, at the very least, a satisfactory level.

Remarkably, on the 1st March 2017, after being deemed unsuccessful at interview which was held in February 2017, the claimant  was verbally asked by Mr F.H, PMB Manager and member of the interview board who did not recommend him for the position of NBPU Manager to consider remaining in his current role on a further temporary assignment encompassing all duties that he previously undertook (i.e. duties of National Benefit Payment Manager and his previous Grade V position as Project Co-Ordinator of the North West Pension Review Project) while a further interview process was initiated, details enclosed .  He stated that this further re-affirmed his capability to carry out the role.

Basis for Grievance:

The claimant discharged the full scope of work which the previous post holder would ordinarily have performed together with his own substantive duties on a 50% basis for the 12 months preceding his temporary appointment of the 25th September 2013 and on a 100% basis thereafter.

After 3.75 years discharging this full scope of work, a genuine expectation of permanency was created by the employer resulting in missed opportunities elsewhere in the organisation for him.

This genuine expectation is further extended on the basis that in accordance with the HR guidance document associated with the respondent’s HR Circular 17/2013, temporary contracts for posts at a higher grade that extend beyond 12 months will only be on an exceptional basis as it would run counter to the concept of temporary contracts.

This event has had a detrimental effect on his psychological and physical health and has fundamentally changed him, as an individual.  It has changed his home life insofar as it has precluded him from everyday interaction with his family.  It has left him coming to work paranoid about the perceived shame associated with a demotion in the eyes of his peers and colleagues.

Reasons for Not Accepting Stage 3 Determination

The claimant stated that he was grossly dissatisfied with the determination given by Mr.P.B. to his Stage 3 grievance for the following reasons as outlined below in his response to each paragraph of Mr B’s determination:

·       Paragraph 1

He acknowledges that Mr B heard his stage 3 Grievance on the 30th August 2019.

·       Paragraph 2

He agrees that there was a delay in this hearing taking place and he confirmed that he was satisfied with the dates offered.

·       Paragraph 3

Mr B advised that he ‘…… examined in detail the correspondence and the clarifications provided ……’ by him during the course of the meeting and gave them ‘…… detailed consideration.’  While Mr B states that he gave the correspondence and clarifications provided detailed consideration he did not deal fully with the content of either in his determination.

·       Paragraph 4

This statement is accurate in so far as Mr B deals with part of the issues raised.  He does not deal with all of the issues raised.

·       Paragraph 5

If Mr B, as stated by himself, ‘…… can only deal with the claim being put forward, with reference to underpinning documents and policy, ……’ then why, for example, did he commit, during the Stage 3 Grievance Hearing, to providing me with the additional information/clarifications from the Corporate Employee Relations Department (CERS) that Ms F stated she had obtained in her Stage 2 determination but did not provide a copy of to him.  Mr B. stated that the claimant was entitled to receive the aforementioned information/clarifications, yet to date he has not been in receipt of same.

·       Paragraph 6 (Court Recommendation LCR 21771)

Mr B. states that he ‘…… can confirm ……’ that LRC 21771does not infer any legal status yet he has not provided him with the relevant back up of this confirmation nor has he advised him where he has obtained this confirmation from.

The word ‘should’ does not express a legal requirement.  For example, if LCR 21771 stated:  ‘…… and shall not have wider implications.’  The word ‘shall’ expresses a legal requirement and would prohibit the use of LCR 21771 as case precedence.  As the word ‘should’ is used LCR 21771 is not prohibited as case precedence.  He advanced that the fact is that LCR 21771 does have implications for his case which reflects his own specific case circumstances. 

·       Paragraph 7 (Circular 17/2013)

Mr B. states that ‘Whilst there appears to have been certain provisions that weren’t met initially, it was intended to fill the post by way of competition,’  The Employer made no attempt to initiate the recruitment process for the filling of this post until 1.5 years (18 months) after the claimant  had commenced in the post on a temporary appointment.  The Employer had adopted a policy providing that temporary appointments longer than 12 months should only be on an exceptional basis.  It is the case that the Employer made no effort to fill the post on a permanent basis at that point in time.  The Employer was already in breach of its own Circular and was not applying its own rules before ever initiating the recruitment process.

·       Paragraph 8 (Appeal under the Code of Practice – Interview Process)

Mr B. states that ‘The rationale and reasoning for not appealing under the above code, following the interview process, was advised to me, and I have no reason to question this, in the absence of any other evidence to the contrary.  However, the fact remains that the appeal was not lodged, and the grievance only became formal some 17 months after the recruitment process concluded.’

The claimant maintained that he advised and outlined in great detail, to Mr B, the explicit reasons why he did not invoke the appeals process.  This was also detailed in writing in his stage 3 submission (extract from same attached).  Mr B also stated that he ‘…… examined in detail the correspondence and the clarifications provided ……’ (as per named Paragraph 3 above).  During the course of the Stage 3 Grievance Hearing Mr B. also stated that he “completely understood” his reasons for not appealing the recruitment process under the Code of Practice and the delay in submitting his formal grievance.

·       Paragraph 9 (Conclusion)

Mr B. states that he has been ‘…… provided with your own testimony ……’ yet it is clear that he appears to have disregarded most of his Stage 3 Grievance written submission and testimony.

This is evident from the vague and ambiguous partial responses received to his Stage 3 Grievance and from the below where items submitted as part of his Stage 3 Grievance were discussed at Stage 3 Hearing but were not responded to or dealt with in the Stage 3 Determination.

Items which were submitted as part of his Stage 3 Grievance and were discussed at Stage 3 Hearing but not responded to or dealt with in the determination

The claimant stated that he was further aggrieved that, Mr B either overlooked or ignored a number of items in his Stage 3 Grievance and subsequently did not deal with them in his determination. Below are the details of same:

Page 2, Paragraph 3

‘In addition to the duties associated with his temporary appointment to the role of NBPU Manager, it also included those of his substantive post as Project Co-ordinator for the North West Pension Review Group as this position would become vacant as a result of his temporary assignment and was not going to be filled. 

I accepted this in good faith and took on and carried out the full scope of duties of both roles (Grade V and Grade VI) with the effect that the employer was saving the salary of a Grade V by having me completing the duties of both roles and not having to fill the vacant Grade V position.’

Comment

Despite discussing this during the hearing, Mr Byrne did not deal with this in his Stage 3 Determination.

Page 2, Paragraph 5 & Page 3, Paragraph 1

‘In February 2017, interviews were held for the position of NBPU Manager.  From this interview process no candidate was recommended for the position, including himself.  At no stage during his tenure as NBPU Manager from October 2013 up to and including the date of interview was his performance or professional knowledge in this role questioned.  In fact, by virtue of the continuous renewal of temporary appointments assigning me to the role of NBPU Manager it would indicate that he was carrying out the duties and the responsibilities of the post to, at the very least, a satisfactory level.

Remarkably, on the 1st March 2017, after being deemed unsuccessful at interview which was held in February 2017, the claimant  was verbally asked by Mr F.H , PMB Manager and member of the interview board who did not recommend him  for the position of NBPU Manager to consider remaining in his current role on a further temporary assignment encompassing all duties that he  previously undertook (i.e. duties of National Benefit Payment Manager and his previous Grade V position as Project Co-Ordinator of the NWPB Project) while a further interview process was initiated, details enclosed.’

Comment

In his determination, Mr B. stated ‘Verbal request to continue in the role’ in response to the above point.  This is, in his opinion, a condensed and derisory reply because not alone was he verbally requested to continue in the role the request was also confirmed in writing to me by e-mail.  The reply does not accurately reflect the dialogue that took place during the hearing on the above point, and the point raised has not been dealt with.  Mr B was informed, at the hearing, that only for the fact that he followed up this verbal request (‘Brief chat’) to continue in the role with an e-mail requesting that Mr H’s verbal request be confirmed in writing from the then General Manager, Mr H, there would be no evidence of this.

Page 3, Paragraph 8

‘Ms F advised that she considered his evidence, provided me with additional information/clarifications from Mr S.D., National Pensions Manager and Ms E.W., HBS Recruit Manager.  However, she did not provide me with additional information/clarifications from the Corporate Employee Relations Department (CERS).  The claimant believes he is entitled to be provided with this additional information/clarification.’

Comment 

If, as stated by Mr B during the course of the Stage 3 Grievance Hearing that he was entitled to receive the aforementioned information/clarifications from Corporate Employee Relations (CERS) and during the hearing he committed to providing me with same, why has he not, to date, been furnished with the aforementioned information/clarifications requested by him?

Page 4, Paragraph 3

‘Ms.F’s s Appendix A  shows that the National Pensions Manager initiated the process on the 1st April 2015. 

-          Firstly, the 1st April 2015 is Quarter 2 of 2015 which is not early 2015.   

-          Secondly, the 1st April 2015 is 554 days after I commenced temporary appointment (25th September 2013).  This was over 1 and a half years after I had commenced in the temporary appointment and was already clearly in breach of RESPONDENT HR Circular 17/2013 which states:  ‘temporary contracts for posts at a higher grade that extend beyond 12 months will only be on an exceptional basis as it would run counter to the concept of temporary contracts’. 

-          Thirdly, as outlined to Ms F. during his Stage 2 Grievance hearing, it took 392 days for me to receive his initial payment for temporary appointment. 

This involved having to, regrettably, invoke the Grievance procedure to Stage 2.  Details of this are contained in.  Ms F states that “this accounts for the delay”.  It is beyond rationale that this can account for a delay in the filling of a Grade VI post within an organisation such as the respondent.’

Comment

Despite discussing the above point during the hearing, Mr B did not deal with it in his Stage 3 Determination.

Page 4, Paragraph 7

‘Ms F. submitted communication from Mr S.D. stating that it “is clear” that the claimant had responsibility for the entire range of duties, all of which are essential.  It is shocking to learn that once he provided written evidence submitted from the employer that he discharged the full scope of duties of the Grade VI role that all of a sudden a response to his Stage 1 Grievance could change from ‘D.M. was granted a temporary Grade VI to cover the essential duties of the role from 1st October 2013 ……’ to the above.’

Comment

Despite discussing the above point during the hearing, Mr B. did not deal with it in his Stage 3 Determination.

Page 5, Paragraph 1

‘Ms F’s response is a repeat of her paragraph 5 response.  Ms F’s submission of Appendix A (Appendix 2.1) shows that the National Pensions Manager initiated the recruitment process on the 1st April 2015.  Firstly, the 1st April 2015 is Quarter 2 of 2015 which is not early 2015.  Secondly, the 1st April 2015 is 554 days after he commenced temporary appointment (25th September 2013).

This was over 1 and a half years after he had commenced in the temporary appointment and was already clearly in breach of RESPONDENT HR Circular 17/2013 which states:  ‘temporary contracts for posts at a higher grade that extend beyond 12 months will only be on an exceptional basis as it would run counter to the concept of temporary contracts’.’

Comment

Despite discussing the above point during the hearing, Mr B. did not deal with it in his Stage 3 Determination.

Page 5, Paragraph 2

‘Ms F. has disregarded the claimant’s valid point about Value for Money.  Response number 2 of her letter confirms that he was responsible for the entire range of duties, all of which were essential, but why now is the position diluted and being partly/mostly performed by a General Manager?  With a Health Service that is currently on its knees and with a Director General who is saying we must deliver a financial breakeven in 2019 and that he intends to give a significant amount of his time and personal energy to bringing about this focus surely Value for Money from the very top to the very bottom of the organisation should be of utmost importance and not disregarded at any level or grade of staff!  It is incomprehensible, to me, that a General Manager is being paid General Manager rate of pay to cover the duties of a Grade VI role, with a Grade VI in post being paid Grade VI rate of pay, to do the job and cover the duties that he covered solely while in the same Grade VI position!  When and why did ‘pay the rate of pay for the job being done’ suddenly expire?’

Comment

Despite discussing the above point during the hearing, Mr B did not deal with it in his Stage 3 Determination.

Page 5, Paragraph 4

‘Ms F’s response is a repeat of her paragraph 5 response.  While she states that it was the intention of the RESPONDENT to fill this position on a permanent basis, RESPONDENT HR Circular 17/2013 was not followed or adhered to.  It had already exceeded 12 months before the intention to fill the position arose.

Ms F states “I understand from our meeting that the outcome of the recruitment process was very disappointing for you, but it is noted that you did not instigate the appeals process available to you in line with the Codes of Conduct”.  The claimant is grossly dissatisfied with this response.  During the Stage 2 hearing he outlined to Ms F the explicit reasons why he did not invoke the appeals process as follows:

The then General Manager, Mr F.H., who was his Line Manager, was a member of the interview board for both interviews.  This was the same Line Manager who he had to take a Stage 2 Grievance against to receive payment for his temporary appointment under RESPONDENT HR Circular 17/2013. It took 392 days to receive his Grade VI rate of pay (ironically, the employer was already in breach of RESPONDENT HR Circular 17/2013 by the time it was determined that he had a right to receive the pay on a temporary basis).

Mr H. had taken the Grievance so personally that the claimant felt intimidated to appeal the interview process.  The claimant stated that he had on file written evidence where he had drafted a comprehensive complaint about the first interview process and the conduct of Mr H at this.  He also has on file written evidence where he enquired about the appeals process and made enquires to Ms. EW Recruitment Manager about the interview process. He stated that he  also took advice from his paid Trade Union representative, FORSA, who advised him  not to appeal the outcome of the interview because their view was that the Recruitment Appeals Process was flawed and in no way impartial and that as his then Line Manager, Mr F.H., was on the interview board he  would potentially be creating a ‘rod for his own back’ by challenging him through the use of the Recruitment Appeals Process. 

As outlined previously in this Grievance, on the 1st March 2017, after being deemed unsuccessful at interview which was held in February 2017, the claimant  was verbally asked by Mr F.H., PMB Manager and member of the interview board who did not recommend me for the position of NBPU Manager to consider remaining in his current role on a further temporary assignment encompassing all duties that he  previously undertook (i.e. duties of National Benefit Payment Manager and his previous Grade V position as Project Co-Ordinator of the North West Pension Review Project) while a further interview process was initiated, details enclosed . This created a sense of security for me (albeit false) that he was surely qualified for this job and he created a very real expectation that he would be “ok” for the next interview.

It is very clear now as per that Mr H. did not want his request in asking me to continue in the role documented and wanted to keep it verbal while creating a false sense of security as he requested that the claimant meet him in his office for a ‘brief chat’.  It is open to being perceived, and the claimant is fully convinced that he was, for want of a better phrase, “getting me back” for the original Grievance he had to take to receive Grade VI rate of pay initially.  Furthermore, during the Stage 2 Grievance Hearing, the claimant  informed Ms F. that in August of 2015 Mr F.H came into his office to get him  to sign an extension of his temporary appointment and while in his office he verbally informed me that the permanent filling of the position was to be part of the national grade VI competition and his words to me were “we can slot you in from that”.  This, again, was creating a further false sense of security.

It is extremely remarkable and insulting that Ms F. did not take any of this into account when reaching her determination.  In fact she didn’t even acknowledge it in her determination.’

Comment

Despite discussing the above point during the hearing, Mr B did not deal with it in his Stage 3 Determination.  The claimant states that he advised and outlined in great detail to Mr B the explicit reasons why he did not invoke the appeals process.  Mr Byrne stated in his Stage 3 Determination that he ‘…… examined in detail the correspondence and the clarifications provided ……’ 

During the course of the Stage 3 Grievance Hearing Mr B. also stated that he ‘completely understood’ his reasons for not appealing the recruitment process under the Code of Practice and the delay in submitting his formal grievance.

Conclusion

From being employed in the Respondent for the past 19 years and 8 months the claimant stated that he has attained vast experience and knowledge especially in the area of Pensions/Superannuation.  He submitted that he had attained more relevant experience and superior academic qualifications than the candidate who was successful at interview for the post of NBPU Manager.

The claimant stated that he had 15+ years of experience working in the Superannuation Department which migrated into National Pensions Management while the successful candidate had significantly less years of experience in National Pensions Management.

The claimant asserted that he had11+ years of experience as Deputy NBPU Manager.  In fact, he co-led the group that created and built the respondent’s National Pension Payment Unit.  He stated that he also had 3 years and 9 months experience as NBPU Manager which the successful candidate did not have.  In fact, the successful candidate had no prior managerial experience in the respondent.

The claimant feels that there is no justification for the marking done by the interview board given his experience and duration working in the role of Deputy NBPU Manager and subsequently NBPU Manager.  He is of the opinion that he was unacceptably under marked on the competency ‘Experience Relevant to the Role’ by the interview board. 

The claimant  wished  to question why the successful candidate could have scored higher than him  at interview and especially in the category of ‘Experience Relevant to the Role’ as the successful candidate had no experience relevant to the role whereas he  had 11+ years’ experience as Deputy NBPU Manager and 3 years and 9 months fulfilling the role of NBPU Manager without hesitation on his part and without question or complaint on the Employer’s part.  No performance issues were ever raised with him by the Employer in relation to his execution of the role of Deputy NBPU Manager or NBPU Manager.  He asserted that he successfully acted in the post for a prolonged period without any issue in relation to his performance. 

The claimant cannot accept that after having acquired 3 years and 9 months satisfactory experience in the role that he was failed by an interview board in the ‘Experience Relevant to the Role’ competency in the duration of an interview. He was deemed suitable, without question, over a 3 year and 9 month period to carry out the role of NBPU Manager.

The successful candidate for the post obtained a higher score at interview.  The claimant stated that the whole interview process was contaminated or tainted possibly with discrimination on grounds of gender.

Remarkably, on the 1st March 2017, after being deemed unsuccessful at interview which was held in February 2017, the claimant  was verbally asked by Mr F.H., PMB Manager and member of the interview board who did not recommend him  for the position of NBPU Manager to consider remaining in his current role on a further temporary assignment encompassing all duties that he  previously undertook (i.e. duties of National Benefit Payment Manager and his previous Grade V position as Project Co-Ordinator of the North West Pension Review Project) while a further interview process was initiated, details enclosed .  This further re-affirmed his capability to carry out the role. 

Having regard to the specific circumstances of his case, the duration and longevity of his temporary assignment and the absence of any exceptional basis for his temporary assignments beyond 12 months he is requesting to be appointed to a permanent position at Grade VI level that he held for 3 years and 9 months with retrospection applying to the 1st July 2017.

The claimant stated, this event has had a detrimental effect on his psychological and physical health and has fundamentally changed me, as an individual.  It has changed his home life insofar as it has precluded me from everyday interaction with his family.  It has left him  coming to work paranoid about the perceived shame associated with a demotion in the eyes of his peers and colleagues, therefore, he is  looking for the following remedy to be applied in order to bring finalisation and closure to this unacceptable, unfortunate, soul and life destroying series of events (both in physical and psychological terms).

Having regard to the specific circumstances of his case, the unfair treatment of him  by the respondent , the respondent’s non-implementation of its own Circular, the respondent’s non-application of its own rules, the duration of his temporary appointment and in the absence of any exceptional basis for his temporary appointments being extended for such a lengthy period of time he is requesting:

1.     That he is formally appointed to a permanent role/position at Grade VI level in his current work location with retrospection applying to the 1st July 2017.  Given the fact that he  was temporarily assigned to the position for 3 years and 9 months this far exceeds the 12 months referred to in the respondent’s own guidance document and the respondent is clearly in breach of its own guidelines and circulars with respect to temporary appointments i.e. they are intended to be exceptional and the basic fact that the respondent has not applied or abided by its own rules.

2.     That he is compensated for his loss of pension entitlements at Grade VI level from 1st July 2017 to date and until such time as he is appointed to a permanent Grade VI position.

3.     That he is paid a compensatory payment for the respondent’s despicable treatment of me and the respondent’s delay in regularising his position.  The reality is that the respondent did not follow its own guidelines and implement its own circular in a timely manner nor did it apply or abide by its own rules.

4.     That he be paid a compensatory payment for the psychological trauma and damage suffered by me directly and indirectly by his wife and children as a result of the respondent ‘s actions, inactions and failures.

5.     That the interview board provide me with a transparent rationale for their scoring of himself and the successful candidate at interview.  He requested that this information be portrayed in a transparent and legible format.

6.     That a sanction is imposed on the respondent that will have a real preventive effect so that this type of scenario will not arise again.  He requested that the sanction imposed be enough to be effective, proportionate and discouraging to the respondent conducting its business in this manner now and into the future.

1.         The complainant submitted a complaint to the Workplace Relations Commission (the “WRC”) on the 17 October, 2019. The complainant sets out that his complaint relates to a grievance he raised with his employer. He advised that a copy of a stage 4 Grievance Submission will be forwarded to the WRC in due course. Essentially the complainant raised a grievance against his employer in relation to the filling of the National Benefit Payment Unit Manager post, a post he held on a temporary basis for a number of years but unfortunately he was unsuccessful at interview for the permanent filling of the position. He filed a Stage 1 Grievance where he appealed the outcome of same to Stage 2 and following a Stage 2 hearing he appealed that decision to Stage 3. His grievance and appeals all failed. In light of that he has decided to take his case to the WRC. The respondent has not received any documentation in relation to the complainant’s submission to the WRC and in that regard this submission is based on information gleaned from the progressive stages of the grievance procedure.

2.           The employer is satisfied that the complainant was given two opportunities to compete for the permanent position. Two competitions were held where no candidates were deemed successful following the first competition and another individual was successful following the second competition. The complainant did hold the post on a specified purpose basis for almost 4 years so it is understandable that he was more than disappointed when he was advised that he was unsuccessful. That said he was aware from the outset that he was contracted on a specific purpose contract where the contract would cease on a particular date or when a permanent appointment to the role was made. He had no expectation that he would be made permanent without going through a permanent competition. The complainant raised a grievance and his grievance was heard at all stages of the internal process. Unfortunately for the complainant his appeals were unsuccessful. 

Background

3.         The complainant commenced in a temporary appointment as National Benefit Payment Unit Manager (“NBPUM”) at Grade 6 level with effect from the 25 September, 2013. The vacancy became available through the retirement of the previous post holder.

4.           The complainant was appointed on a temporary basis pursuant to HR Circular 17/2013 together with HR Guidance Document on the management of Letters of Appointment.  The appointment was by way of a specific purpose contract (“SPC”) the purpose being to fill the post to a particular as renewed or until a permanent appointment was made whichever was the earlier. The complainant’s SPC commenced on the 1 October, 2013 for twelve month duration but was renewed on a number of occasions up and until 30 June, 2017.

5.           In February 2017, interviews were held for the permanent filling of the NBPUM. No candidate was deemed successful for the role. A decision was taken to run a further competition. The complainant was asked to continue in the role pending the conclusion of the second competition. A subsequent competition took place and the complainant was successful at interview and placed number 2 on the panel of successful candidates. Unfortunately for him another candidate was deemed more suitable and placed number 1 on the panel and was duly appointed to the post of NBPUM. The complainant was required to revert back to his substantive role in Pensions.

6.           The complainant was extremely disappointed at the result and while successful at interview he was unfortunate that another candidate performed better on the day. The complainant is on record seeking some answers from the Health Business Services (“HBS”) Recruit section following both competitions. He was advised of his option to formally appeal the interview board decision under the code of practice of the Commission for Public Service Appointments (“CPSA”). Correspondence by way of email to HBS Recruit was replied to providing interview notes and advice. Interestingly the complainant did not appeal the outcome of either competition.  

 7.          The complainant may introduce a grievance he raised in June 2014 in relation to salary remuneration for the SPC role. This grievance was eventually upheld and appropriate payment made for the additional responsibilities assumed. Nothing turns on this matter however and is immaterial to the dispute raised at Adjudication.

8.           The complainant subsequently raised a grievance in relation to his perception of ill treatment by the Health Service Provider. Although the scope of the Grievance Procedure is not set out definitively it was not intended to deal with grievances flowing from recruitment competitions. With the passing of the Public Service Management (Recruitment and Appointments) Act, 2004 the Commission set up pursuant to the Act was created to ensure that appointments to the civil and public service are fair, transparent and merit based. The complainant had the option of submitting an appeal to the appropriate regulator. The grievance was submitted on the 18 September, 2018 and a hearing was convened on Wednesday 3 October, 2018. The grievance was submitted on foot of Labour Court Recommendation LCR 21771.

9.           The stage 1 grievance hearing was chaired by Mr S.D. Pensions Management Business Manager. A record of the meeting was shared with the complainant for any amendments he wished to make to the minutes. Mr D issued his decision on the 22 October, 2018. Mr D addressed the grievance in particular the reliance on LCR 21771. In his findings Mr D was unable to uphold the complainant’s grievance but advised that his decision could be appealed to the A.N.D. Ms.EF

10.        On the 23 April, 2019 some six months later the complainant submitted an appeal of the stage 1 grievance to Ms E.F under stage 2 of the grievance procedure. In fairness he did explain the six month delay. Again the complainant was relying on LCR 21771 as a precedent for his own situation. The complainant submitted a comprehensive set of documents and his reasons for appeal. He took issue with the decision at stage 1 and set out in particular a number of challenges to the conclusions made by Mr D.

11.        Ms E.F. convened a stage 2 grievance hearing on the 3 May, 2019. The complainant chose not to be represented. Prior to making a decision Ms EF made a number of enquires to ensure she possessed all the facts that would enable examine the grievance in full. Ms EF issued her decision on the 9 May, 2019. Attached to her decision was an appendix A which contained information in relation to some of the questions posed by Ms EF one in particular relating to the delay in filling the vacant post. It also included correspondence from the former Pensions Management Business Manager in relation to extending the temporary contracts pending the permanent competition.  Ms EF did not uphold the complainant’s grievance but she was moved by the significant impact the process and outcome had on him. She offered the complainant a separate meeting to explore available employment supports to help him through the issue and assist him regain job fulfilment. He was also advised of his right to appeal her decision to Mr P.B. ERM.

12.        On the 17 July, 2019 the complainant availed of the opportunity to appeal the stage 2 decision of Ms.EF to Mr.PB. The appeal letter sought a decision at stage 3 of the grievance procedure. Attached to the letter of appeal was a comprehensive set of documents (Appendices 1 to 8). A stage 3 hearing was held on the 30 August, 2019. Again the complainant was not represented and he was willing to proceed without representation. Mr PB issued his decision on the 10 September, 2019. Mr.PB directed himself to three main points i.e. Labour Court Recommendation LCR 21771, Circular 17/2013 and Appeal under the Code of Practice CPSA. He concluded that he was not in a position to accede to the complainant’s request to be appointed to a Grade VI outside of a competitive process particularly given the knock on effects of such a decision. He also did not think it was within his remit to make any recommendation in relation to compensation.

Labour Court Recommendation LCR 21771

13.       The complainant’s grievance relies significantly on the above Labour Court Recommendation. This case was submitted by Fórsa in relation to five employees. All five were in vacant posts and were contracted on specific purpose contracts. These contracts were renewed on a number of occasions where two of the staff were in a temporary position for seven years, one person for six years and two others for five years. It was noted that the majority of staff in question had ‘gap’ periods where they were not in receipt of contracts setting out the length of time on the SPC or indeed what the purpose was. No exceptional basis for keeping the employees on SPC’s was advised to the Court and more importantly no competition was held or scheduled at the date of Court hearing to fill the vacancies in a permanent capacity.

14.        The Court referred to the Health Service Provider HR Circular 17/2013 and in particular the guidance document issued on foot of the Circular. That guidance document clarified that following the agreement that was the basis of the Circular temporary appointments extending beyond 12 months in duration ‘should only be on an exceptional basis as they would run counter to the concept of temporary appointments’. The key issue for the Labour Court is as set out in the following:-

              “The Court therefore cannot support the proposition that the Claimants, having been retained on temporary assignment/appointment to grades higher than their basic grade for periods of up to seven years and, since 2013, outside the terms of Circular 17/2013, should now be subject to competition in order to retain the grade they have occupied for periods of between five and seven years.”

              The complainant when submitting his grievance was retained in a position on a temporary assignment/appointment to a grade higher than his basic grade for three years and 9 months. The distinguishing factor however is that he then competed for the job on two occasions and while successful at interview in the second competition was unfortunate that another person scored higher and was placed number 1 on the panel. Not only that but reliance on the Court Recommendation is clearly not a strong platform as the Court were mindful of the many others that could be in a position analogous to the Claimants. The Court was also mindful that the matter before the Court was not engaged nationally at the Health Service National Joint Council. Interestingly in Mr PB’s stage 3 decision he referenced that the issue of temporary higher assignment contracts, and the duration they are in place, has collective currency and is something that the employer is engaged on. The deliberations on this issue are only in relation to those retained long term where no interviews were held or scheduled going forward. The Court concluded that “This Recommendation reflects only the specific circumstances of the five individuals before the Court and should not be taken to have a wider implication”. While the Court Recommendation has no legal basis in terms of an industrial relations dispute it carries significant gravitas.

15.        It must be remembered that there is a statutory requirement on the respondent to fill any vacancy be it temporary or permanent by open competition in accordance with the obligations for any entity holding a recruitment licence for the recruitment of civil or public servants.

16.        Another important point that distinguishes the complainant’s case from that of the claimants in LCR 21771 is the complainant was aware as early as February 2015 that application was sought to fill the post permanently.  The competition was not held until early 2017 but Ms EF sought an answer to that question which was provided by Ms E.W. Recruit Manager.

17.        The complainant is seeking an equitable solution to being left on a temporary contract in a higher role in excess of twelve months. In seeking such an equitable solution one is required to act on the issue without delay. In terms of legal principles to delay and acquiesce is generally fatal to an equitable remedy. The complainant should have raised his concerns at an early date and in that context he may well have brought about a different outcome. It was only when he became aware of the Labour Court Recommendation LCR 21771 that he submitted a grievance.

Conclusion

18.       The complainant is seeking to be appointed to a Grade VI position. The position he held on a temporary basis has been filled since 1 July, 2017 therefore he cannot be appointed to that role. Even if there was a vacancy for a permanent grade VI it would be unconscionable to appoint the complainant to that post without going through an open competition as required by statute. The complainant is making an argument that his treatment as he perceives it demands a response by the employer to the extent that a permanent appointment be made without competition. First, he was appointed on a temporary basis with a clear expectation that the appointment was temporary in nature and that he would hold that role until a permanent appointment was made. Secondly he was aware that approval was sought to fill the post as is required in 2015. It is accepted that a delay occurred in getting approval and putting a competition in train. That was explained by HBS Recruit to Ms EF and advised to the complainant as part of the grievance procedure. He did nothing to put the employer on notice that he was aggrieved. The comparators he refers to in the Labour Court case are not comparing like with like. They were in temporary positions for 5, 6 and 7 years with no sight of a competition during that time to regularise their positions. They submitted a complaint in that the employer was doing nothing proactive to remedy their plight. The Court was of the opinion that to have them compete for their posts after such a length of time was unreasonable. The complainant no doubt had expectations that he would be appointed following interview in early 2017 and again in some months later. As stated he was successful and deemed suitable to hold a post at Grade VI. It was unfortunate for him that someone performed better on the day. It is understandable that he was disappointed and it is appreciated that he may well have seen some light in solving his disappointment when the Labour Court issued their recommendation. The facts are his case does not mirror those of the claimants and the Court clearly confined their decision to the claimants. Against all the above the Health Service Provider respectfully request the Adjudicator hold in their favour.

The prospect of settling this dispute was considered in the course of the hearing and the respondent undertook to explore options for settlement but it has not been possible to arrive at a mutually acceptable formula and accordingly I will proceed to issue the following recommendation.

I have considered the submissions of the parties and the extensive correspondence submitted by the claimant which chronicles the processing of the claimant’s grievance through the respondent’s procedures. To a significant extent the claimant is relying upon the provisions of LCR 21771 – dealt with at length in the foregoing submissions while the respondent has argued that there are significant differences between the circumstances of the claimants in LCR21771 and the circumstances of the claimant – it has been advanced that the differences are of such significance that they distinguish between both cases and it is contended that the claimant is not comparing like with like.

I am satisfied on reviewing the parties’ arguments as set out in LCR 21771 that there are compelling similarities between the circumstances of both sets of workers and that the arguments relied upon in the instant dispute are to a significant extent on all fours with those advanced by the union in LCR 21771.

The claimant filled a fixed and specific need for the respondent. From Oct. 2013 onwards the claimant was filling a vacant post. It has not been disputed that for an aggregate period of 6 months in the year proceeding the claimant’s appointment to NBPU Manager in Oct 2013, the claimant covered the post for the substantive post holder who was off on extended sick leave.  It has not been disputed that from Oct. 2013 to Feb. 2017, the claimant covered his own substantive post as well as the NBPU Manager position.  The claimant acted in the post from October 2013 to February 2017 and continued in the post having been rejected in the February 2017 competition for a further period to July 2017 pending the outcome of a second competition where the claimant was deemed successful to be panelled in second position.

The first competition was confined to employees of the respondent while the second competition was an open competition. It has not been disputed by the respondent that any reservations were ever expressed or conveyed to the claimant in relation to his performance. It is noteworthy  that in the course of his second and third grievance hearing that the claimant contended  that his line manager – who was the only party to sit on both interview panels – advised him in August 2015 that the permanent filling of the position was to be part of the national Grade VI competition and stated to the claimant “ we can slot you in from that”. It appears from the documented outcomes of both hearings that this allegation was not investigated at Stage 11 or Stage 111 of the grievance process even though the claimant relied upon it as a factor in justifying that he had a reasonable expectation of being successful at competition. It is also difficult to comprehend why the claimant was denied advices given to Ms.EF by CERS when she was investigating his grievance   – notwithstanding what the claimant alleges were the commitments from Mr.PB to ensure that the claimant would be furnished with said documentation.

The respondent has pointed to the failure of the claimant to lodge a formal appeal to the outcome of the interviews for the post. I note the claimant’s explanation that he felt intimidated from doing so on foot  of his experience of a previous grievance pursued against his line manager about his pay - which was resolved after an unfathomably protracted delay.

In LCR 21771, the Court invokes the provisions of the guidance document issued by the respondent to accompany circular 17/2013 and in particular the clarification that appointments extending beyond 12 months in duration ‘should only be on an exceptional basis as they would run counter to the concept of temporary appointments’. On the basis of the submissions made to the WRC and the voluminous documentation presented, I am not satisfied that any compelling justification has been advanced to justify the digression from this practise by virtue of a compelling exceptional basis. I do not accept that the illness of the former postholder constituted exceptional circumstances that might allow the respondent resile from the agreements then in place or with the terms of circular 17/2013.

I note that if the claimant had been externally recruited to the NPBU Manager’s position on a fixed term contract he could arguably have pursued an entitlement to a contract of indefinite duration  by virtue of his aggregate service in the post – while I acknowledge that he would not have locus standi under Fixed Term Workers legislation, the principles of unfairness in issuing back to back contracts on a protracted basis are relevant in the context of this dispute.

In all of the circumstances I find that  the claimant willingly obliged the respondent to the best of his ability by covering the substantive post initially on an ad hoc basis for 6 months, by fulfilling the role along with his own substantive post from October 2014 – February 2017 and by agreeing to continue in the post from Feb.-July 2017 pending an external competition – notwithstanding his disappointment with the outcome of the Feb. 2017 competition. While I acknowledge the obligations on the respondent with respect to the conduct of their recruitment campaigns, I find that the outcome of the process for the claimant – given that no performance deficits were identified or conveyed to him throughout this extended process - was unfair to the claimant and accordingly I am upholding the complaint. His expectation of eventual success at competition was not unreasonable in circumstances where no performance issues were identified or brought to his attention. The emergence of a practise whereby workers are placed in the position of acting up on a protracted basis and subsequently required to compete at the risk of being unsuccessful, having already proved themselves in the job – while convenient for an employer, is unfair to an employee.

I am not in a position to make any recommendation with respect to the remedies sought by the claimant with respect to the rationale for the scoring of the claimant and the successful candidate in the most recent interview in circumstances where the claimant chose not to pursue a formal appeal.

I note that both managers who conducted the claimant’s stage 2 and stage 3 grievance hearings acknowledged the personal toll these proceedings have had on the claimant – I recommend that the respondent pay the claimant €10,000 compensation for the distress arising from this.

I note that in the most recent competition in which the claimant was placed number 2, that there was provision for the creation of a panel from which permanent vacancies may be filled. In light of the unique circumstances pertaining in this dispute I recommend in full and final settlement of this complaint that the claimant be appointed to a grade VI position with effect from the 1st July 2017 and that the parties meet with a view to agreeing the appropriate brief and location of the post.