Complainant

Respondent

Anonymised Parties

A Support Worker

A Public Body

Representatives

Fidelma Carron, SIPTU Workers Rights Centre

Member of staff

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-00034443-001

04/02/2020

This case arose from an Industrial Dispute in a Care Facility. The claimant in the case had accepted a reassignment to the role of Domestic Supervisor on an indefinite basis. The Employer contended that the reassignment was on a locum basis and came to a natural end following a large-scale reorganisation of services and reduction in bed numbers.

The dispute had been progressed through the Organisations Grievance procedure and had not yielded a mutually agreeable resolution.

The claimant sought a recommendation of regularisation.

The Claimant in this case is a member of Household staff with a Public Body. In November 2015. She expressed an interest in the role of “Relief Domestic Supervisor, Indefinite duration “. She commenced work as a Domestic supervisor on 15 December 2015. There are two such positions at the Care Facility where she works.

The following June, the claimant received confirmation of having been placed No 1 on the panel for Domestic Supervisor and was requested to comply with the administrative transitionary arrangements. The post was described as a full-time position, effective from 15 February 2016. The Complainant continued in this role until notified of a planned cessation of the role from January 2019. The claimant had no desire to vacate the position as she contended that the role remained viable.

The Claimant submitted a grievance and participated in three stages of this process without success and referred her claim for regularisation in the role of Domestic Supervisor to the WRC on 4 February 2020.

The Union, on behalf of the claimant raised several arguments by written submission and on the day of hearing. The claimant understood that she had secured life tenure in the position of “Relief Cover Domestic Supervisor “She had submitted the administrative forms to support her appointment to an acknowledged vacant position.

The claimant acknowledged a reduction in bed numbers and reorganisation and redeployment of some staff had occurred during her tenure, but she is still required to return inputted information for PPARS (payroll system) for a large body of staff in addition to ongoing waste management in the absence of staff replacement.

The Claimant had agreed to work under protest at 1 day per week and annual leave as a Domestic Supervisor pending the outcome of her case at the WRC. The remainder of her full-time hours are worked as Household support.

The claimant confirmed that her locum position had not been included in any work-based discussions at the time of the bed reduction and consequent staff redeployment. She explained that she was keen to advance to regularisation in the role of Domestic Supervisor.

The Union submitted that the Care Facility was currently undergoing an ambitious expansion plan and the claimant would be required as a Domestic Supervisor for this key development.

The Claimant sought regularisation on foot of her 4-year service as she was filling a permanent vacancy.

The Employer operates a Public Body and, in this instance, runs several Care Facilities in a named Geographical area.

The Employer confirmed that that the complainant, a member of Household staff, had been appointed to the position of Relief Domestic Supervisor following an expression of interest in 2015. She was paid an acting allowance and fulfilled the role until the Care Facility determined that the need for a locum Domestic Supervisor was considerably reduced. In December 2019, the Employer informed the claimant that her contract would not be renewed. The claimant did not claim an acting allowance from that time.

The Employer disputed that the claimant could safely suggest that she had life tenure in the position of Domestic Supervisor. The original post holder had vacated the position, and nobody had sought the post back filled by way of a Form B. In addition, the employer submitted that there had been several changes as Senior Management level at the facility which impeded an in-depth analysis of the order in which changes had occurred. The Employer acknowledged their ongoing respect for the claimant in both roles she held.

At hearing, the Employer chronicled the Reorganisation at the Care Facility. The Complainant covered the Domestic Supervisors post up to 31 October 31, 2018. Beds reduced from 100 to 59 and a considerable reduction in workload followed. Several redeployments occurred to a neighbouring care facility and the Employer could not justify the retention of 2 Domestic Supervisor positions against such change.

The Employer had engaged with the claimant to seek a resolution and retained confidence that the Stage 3 Grievance procedure, outlined below, held the basis for a resolution.

1 The Complainant should retain the Domestic Supervisor position for relief cover as reflected in the original advertisement in 2015.

2 Relief cover is required for annual leave and sick leave.

3 In the event that this offer is not satisfactory, a recommendation for application of the compensatory provisions of the Public service Agreement at 1.5 times loss of earnings.

The Employer maintained that they were open to discuss other redeployment opportunities on a Competition basis.

The Employer acknowledged that the claimant had continued in the locum position on a one day a week basis pending the outcome of the adjudication process.

The Employer confirmed that the Care Facility anticipated a completion of the expansion programme during 2022 but the workforce plan had not been finalised yet.

The Employer disputed the claimants claim for automatic regularisation . The Claimant had ceased claiming her acting allowance in November 2018 and they were prepared to pay retrospection for the relief duties undertaken.

I have read and considered both parties well prepared submissions in support of their respective positions.

I have also reflected on both party’s presentation at hearing. I appreciate that there were some IT difficulties surrounding inter-party communication. I acknowledge the support of both representatives in seeking to deliver the most cogent submissions.

The claim here is one of regularisation in a position currently worked on a 1 day a week basis with replacement for annual leave and sick leave.

It became clear to me that the parties differed in their understanding of the expression of interest for the post of Domestic Supervisor (Relief Cover -Indefinite duration) from November 2015.

At that time, it appears there were two funded positions at Domestic Supervisor level at the Care Facility. In her letter of acceptance, dated 17 December 2015, the claimant confirmed that she agreed to a temporary reassignment on a locum basis.

In June 2016, the Employer thanked the claimant for re-assigning to the role of Domestic Supervisor following the post holders “request to permanently vacate her position “. This was accompanied by a request to complete a Temporary Appointment form.

I understand that the post holder never returned to her position and the employer did not take steps to secure a back fill. However, the claimant continued to act up continuously from November 2015 for three years.

I asked the parties whether there was a national agreement in place which might recognise this continuous pattern of acting and was informed that no such agreement was in place? I learned that the claimant was not involved in any umbrella discussions on the interface of the locum post within a changing service 2016-2018. During this period, the claimant received €50 a week in acting pay and she had experienced a loss of earnings since December 2018. The Employer agreed to award retrospection for time spent in the locum capacity.

I found it unusual that the changing pathway of the position of Domestic Supervisor was not made known to the claimant in advance of December 2018. I accept that the Centre has experienced and continues to experience large scale change.

The parties are at odds on the perceived tenure of the position advertised in 2015.

I had a difficulty in accepting the claimants sudden distancing from seeking payment of her acting allowance from late 2018 or since. It seemed to me that she had continued to carry a supervisory workload which ought to have generated commensurate payment, albeit on a reduced level. The Employer has now addressed this.

I have reviewed the extension to the Lansdowne Road Agreement and noted that it advocates for clearly defined career structures and mobility opportunities for staff if possible. In addition, a commitment was recorded to undertake reviews of rostering arrangements.

I was impressed by the reasoning adopted at stage 3 of the grievance by the Employer. The Employer offered to regularise the claimant as a locum Domestic Supervisor. The Union, on behalf of the claimant explained that the claimant had reservations regarding this as she wished to develop a pathway into a full-time opportunity and not just locum. The Employer explained that their hands were tied within the current situation of expansion, without an agreed workforce plan to accompany the projected increase in beds.

The Claimant was not keen to shut down her opportunity for promotion by accepting a compensatory buy out formula, neither was she keen to consider external redeployment to secure the career pathway.

For my part, I noted a series of ambiguities surrounding the position of Relief Domestic Supervisor on both sides. The claimants written acceptance of a locum position and the omnipresence of the HR 103 form supported this ambiguity. The Employer reflected the continuous tenure by payment of an acting allowance throughout.

I found an insufficient engagement on the changing nature of the second Domestic Supervisors position which has now left the claimant in a career limbo where she seems to have reached out and made a montage of vacant roles and added them to her own. The Employer is not prepared to regularise her on a full-time basis outside of her locum work at this time.

I have found some merit to this dispute. I have identified that the claimant’s exclusion from direct engagement on the evolution of the position she held from 2015 to have been unfair and unreasonable. I have found that the Employer ought to have discussed the workforce plan surrounding this position with the claimant and her representative and ought not to have addressed her with a sudden cessation of the position in December 2018. I am left with a view that the claimant was left out of the change agenda at the Care Facility and this had damaged her career prospects contrary to what was envisaged in the Public Service Agreement(PSA) extension.

I would have preferred if the position was endorsed and managed by Central Recruitment first day.

It is very apparent that a high level of mutual respect exists between the parties in this case .

On balance, I have found some merit in this dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that as a first step, the claimant accepts regularisation in the position of Domestic Supervisor (relief) from December 2018 on one day per week attendance and locum cover.

I also recommend that the parties enter immediate negotiations on the workforce plan for Domestic Supervisors in the enhanced facility. In the event that the cadre of Domestic Supervisor is increased at that juncture, the claimant should be permitted to increase her hours in the Domestic Supervisor grade on a permanent basis or failing that, be permitted to increase her hours in the higher grade at a neighbouring facility within the parameters of the PSA by mutual agreement.

I make this recommendation on a strictly one off personal to holder basis , mindful of the historical ambiguities in the case and is without precedent value .

Claim for Regularisation in existing role.