Complainant

Respondent

Anonymised Parties

A Physiotherapist

A Healthcare Provider

Representatives

FORSA

Employee Relations Manager

Industrial Relations 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-00041607-001

18/12/2020

The worker competed for and was successful and placed number 2 on a panel for a Physiotherapy Manager CHO8 in October/November 2019. The first candidate on the panel was appointed at that time. This person made it known that they intended to resign from this post in May 2020. The worker accepted an Expression of Interest for the post on 20th May 2020. This offer was then retracted the following July. At that time, the recruitment process was at a very advanced stage and had gone through and passed all usual pre-employment checks and process. The worker was awaiting the confirmation of her start date when HBS contracted her to inform that offer had been retracted two months after her acceptance of the post.

Forsa states that the respondent will quite rightly state that there was a national agreement with regard to the regrading of Physiotherapy Manage Posts during this time of the offer of the post. Fórsa maintains that the respondent was aware of this process when they moved to advertise the post in October/November 2019. It states that the respondent had continued to recruit and place successful candidates from the panel that was formed. Forsa also contends that they were also aware that this post was engaged in that process and was near the final stages of conclusion to same at the time of the expression of interest was offered and accepted. The Union states that the worker was treated unfairly by her employer, had her expectations raised by her employer and had caused her some considerable embarrassment within her workplace.

Background:

 The worker commenced employment with the respondent in 1991 as an entry grade Physiotherapist. In 2005, she competed for, and was successful in the competition of the first clinical specialist post within the region. The worker attained the 1st place on a panel. She continues to carry out her work in this role at the named Hospital. In 2018, the worker commenced an acting position of Physiotherapy Manager for 18 months within the Hospital. During this time, she completed a leadership course, setting out her future career in leadership/management roles. It was this position that encouraged the worker to apply for the Physiotherapy Manger post in October/November 2019 within CHO8. The worker asserted that she did not make this decision lightly as she knew that it would she would be removed from clinical practice in which she grown and developed for many years within the hospital.

Following the competition and earning second place on the panel in November 2019, the worker was then offered an expression of interest within a reasonably short time frame of 6 months. An acceptance was then forwarded to HBS by the worker on the 20th May 2020. Subsequently on 27th May, the worker informed her manager in the hospital of the offer and her acceptance and that although she would keep her updated that she did not wish to share the information with other colleagues until things were confirmed. Over the following weeks, numerous interactions took place with regard to the acceptance of post, right up until screening, clearance, 10.06.20 final screening processes. On the same date a second e-mail was received from the respondent seeking a start date from the worker for contract purposes. It was at this juncture that the present team and consultants that the claimant worked with in the Hospital needed to be informed that she was to take up the post of physiotherapist manager in CHO 8 and would therefore leave the hospital.

On 12th June 2020 the respondent forwarded letters to approved post holders in Physiotherapy Managers that the post is now to convert to the regraded post of physiotherapy charge 111. The worker had already started arrangements for the handing over of cases files etc. It was now well known by all colleagues working in the hospital that the worker’s departure was imminent. On 24th June 2020, the worker received an email from HBS informing her that all clearances from Recruit screening are in place however the offer was put on hold by HR/services. The worker contacted her employer a number of times over the forthcoming weeks seeking updates on the pausing of her appointment. One communication was received from the worker’s employer during this time, advising her that the process was paused by HR. This communication was received on 14th July 2020, 3 weeks from receiving the email from HBS. The following week, the worker again sought an update from the respondent and she received an email from HBS the following day advising that the offer had been retracted. The explanation from the National Recruitment Service was that ‘HR/Service have requested that this post is placed on hold. They will give further instruction with regard to how to proceed. Once further instruction is advised to HBS Recruit you will be notified immediately’. The following day the Head of Primary Care of CHO8 rang the worker to inform of the context of the withdrawal of the offer. Context given was that the post had been regraded to a higher post and that there would have to be another competition held to reflect same.

Following this, the worker then appealed this decision to her employer but was unsuccessful in this appeal. This caused great embarrassment to the worker in both her professional and personal life. The worker states that she felt most uncomfortable within her work as she then had to inform all colleagues and consultants that the post had been temporarily withdrawn. At the time of the initial referral to the Adjudication service on 18th December 2020, the post remained vacant and Fórsa were seeking that the Adjudicator would find in favour of this claim and that the worker would be successful in and be placed into the post. This was due to the fact that the timelines to the worker achieving the place on the panel in 2019 were the same as to the person who had accepted the placement (2019) and had that person remained in the post they would have gained the upgrade of the post as intended. The national agreement had not been implemented when the worker had accepted the post and it was confirmed all clearance recruitment checks had been complete prior to the implementation of the agreement. The Union states that the duties/roles/responsibilities and qualifications had not changed within the role of which the worker applied for and qualified for. Whilst the referral was lodged with the WRC, the employer went ahead and re-advertised the post at the newly upgraded Physiotherapy In Charge 111 post.

The Union states that the duties, responsibilities etc. of the role remained the same and that is why this post warranted and was eligible for an upgrade under the agreement. The worker, not wanting to exclude herself from the post but also not wanting to engage with a process that was in dispute with her union, sought agreement from her union that she should apply for the post. She got placed  in 2nd position on the panel and the person who was successful in gaining 1st position is now in the post today.

Union’s Case

Forsa contends that the worker should have been the person to be appointed into the post of the Physiotherapy Manager. It states that she qualified and earned the position in a fair and transparent manner. The respondent was aware that this case had been to the attention of Fórsa and had been referred to the WRC Adjudication services for a fair determination allowing an agreed process to take place. The employer has denied this right to the worker by re-advertising the post whilst the issue was in process thus showing total disregard to not only the worker but to the industrial relations process and the industrial relation machinery of the state. It is not unusual for temporary measures to be put in place whilst industrial relations processes are ongoing. The employer choose not to do this at this time. The Union argues that one can only surmise that the reasoning for these actions were that the employer was not confident of the arguments put against Fórsa’s representations with regard to the retraction of the worker’s appointment and the timelines around same. These actions have not only caused a great embarrassment to the worker but they have also resulted in a financial cost through her potential earnings and pension superannuation payments on her retirement.

Conclusion

 It is the contention of FÓRSA that the worker had a genuine right to the post of Physiotherapy Manager CHO8. It states that the employer has failed the worker in a number of instances

1. The worker had been involved in a fair and transparent process of interview for a post and was offered a post following this.

 2. She was put through a process, with the expectation that she was going to be appointed into this post. This expectation was embedded as it was to a very late stage of the post been retracted

3. The employer failed to keep the worker informed in a timely manner as issues arose around the regrading of the post.

4. This denied opportunities for engagement between her employer and her Union to occur in a timely manner and the employer made a decision without consultation to all parties of the agreement.

5. The employer raised the issue internally but did not seek for both parties to the agreed upgrade to come to an agreement around a potential anomaly with regard to a national agreement.

6. The worker suffered embarrassment in both her professional and personal life due to the behaviour of the employer.

7. The worker was denied the right to have the initial grievance of the retraction of the post followed through a completed process. She was further denied the prospect of a positive outcome and placed into the post because her employer acted outside of the agreed industrial relations machinery mechanisms that is afforded to workers and expected with regard to public service employees.

 8. The worker has suffered a potential loss of earning and pensions payment due to the actions of her employer.

The Union is seeking that the worker is remunerated for the potential losses that she has suffered due to the behaviour of her employer. That she is compensated accordingly for the embarrassment suffered in both her professional surroundings and her private life. The Union states that this series of events has been a particularly bad experience in the worker’s 31 years of loyal service to the employer.

The employer states that the within dispute centres on the recruitment of Physio Manager to the named Physiotherapy Department. The employer states that up to 31 May Mr. A was the Physio Manager and the dates of employment are as follows: 16.01.2017 – 24.03.2019 (Specified Purpose Contract) 25.03.2019 – 31.05.2020 (Permanent). The employer states that on notification that Mr. A was leaving, the National Recruitment Service (NRS) put forward expression of interest to the Physiotherapist Manager Permanent panel. The worker in the within claim was the highest placed on that panel an expressed an interest in the post. The employer states that the worker was offered the post subject to recruitment checks.

The employer contends that parallel to this there was a process whereby agreement between the employer and Forsa provided that a number of Physiotherapy Managers had the opportunity to have their post regraded to an In-Charge III. There were three therapy posts in the named location that fell under this process. The post held by Mr. A was one such post. When Mr. A resigned on 31 May 2020, the next most senior in the Department was asked to act up. The employer maintains that this was in line with policy. This person was not remunerated for this additional responsibility as the first three months is not paid. Ms. G took up the post of Physio Manager on 1 June 2020 on Mr. A's leaving. The employer states that this was based on seniority and in line with Circular 17/2013. The employer states that while it was claimed at the hearing by the Union that the worker was not allowed act up into the vacancy, there is no validity to this claim as the worker was a specialist in a Named location and would therefore have no entitlement to act up. The employer reiterated that it was for the next most senior in the department.

The employer agrees that the worker was offered the post on 26 May 2020 and she accepted that post on 28 May 2020. The employer states that this does not create a legal contract as the offer and acceptance is conditional, which is normal practice, on relevant recruitment checks. The employer maintains that while the recruitment checks were ongoing, approval was received from the National HR to upgrade the post to In-Charge III. This was advised to the Head of HR by letter dated 12 June 2020. He then advised NRS on 17 June 2020 to put a stop to the recruitment process for Physiotherapy Manager.

The employer states that Ms. C in NRS, in a reply email on 24 June 2020 to the worker advised that all clearances were on file as claimed by the Union, however, this email advised her that the filling of the post was to be placed on hold. The employer asserts that there is no mention here that the worker was to agree a start date with the line manager in the Named location as claimed by the Union official. The employer states that on 20 July, the Head of HR emailed Ms. C (NRS) advising that the service would not be proceeding with the Physiotherapist Manager offer to the worker as the grading for the position had changed. He advised that he would be submitting paperwork for a competition for an In-Charge III in due course and would welcome an application from the worker. It was stated that he asked Ms. C to appraise the worker of the situation.

The employer reiterates that the recruitment process to appoint the worker could not proceed as the post was now designated an In-Charge III from 17 September 2018. This post now could only be filled as an In Charge III and in that context NRS were advised to cease finalising the appointment of the worker. Ms. C as requested by Head of HR advised the worker of that on 21 July 2020. The worker was referred to the Code of Practice and it was suggested that if she wanted to appeal the circumstances she found herself in, she was welcome to do so. She was advised to make an informal appeal to the Contracting Manager, if she so wished, no later than 5 pm on Tuesday 28 July 2020. She was also informed that if she wanted to bypass the informal review process to a formal review, she should submit a request for that review within 10 working days i.e. no later than 5 pm on Tuesday 4 August 2020. The employer confirms that it is not on notice that the worker availed of either option.

The employer states that given that the post was now an In Charge III, that vacancy went to competition. The worker applied and was placed on the panel, however another candidate was placed higher on the panel and was appointed to the role. The employer states that on 29 July 2020, the post was regraded on the HR system to an In Charge III in line with the agreement as referenced above backdated to 17 September 2018. Ms. G who had been placed into the post on 1 June 2020 in an acting capacity and was in that post for over 3 months was now entitled to be paid the In Charge rate that was duly applied retrospective to 1 June 2020. The employer states that as it transpired, Ms. G was the successful candidate for the permanent appointment and was duly appointed on 22 March 2021.

The employer states that on foot of the above detail, regretfully the worker does not have any case. The employer agrees that what transpired was very unfortunate and the timing was not in the worker’s favour. The employer states that there was nothing untoward done in the context of filling the vacancy. It states that if the same circumstances were to arise again, the same actions would be carried out. The employer accepts that the worker was very disappointed. It states that even if NRS had gone beyond the norm in completing recruitment checks, the worker would never have been offered a contract prior to 17 June 2020 which is the date that the process was stopped.

The employer reiterates that based on the facts in the within dispute, there was no legal appointment made, no legal contract entered into as the recruitment process was still in process. The employer states that it is immaterial how far or complete the checks were, the fact is no contract was signed, therefore the worker was not appointed to the role. The employer states that, in any event, the role that the worker was successful for was a Physiotherapy Manager and with effect from 12 June 2020, the post was now designated a Physiotherapist Manager In Charge III post so the worker could not be appointed into a role that she did not compete for.                     

Having very carefully considered all of the information provided in the within dispute, I find that based on the sequence of events, the worker had an expectation to be appointed to the role. I do not accept the employer’s argument that although checks and clearances had been complete, the worker had not “signed on the dotted line”.

I note that the worker has been employed with the respondent since 1991 and has carried out management roles at different periods during this time. The worker stated that she was aware of recruitments and recruitment processes. I note that withdrawal of the offer occurred in July 2020 and following a failed appeal, the matter was referred to the WRC. I note that whilst awaiting a  hearing into the matter, the competition for a new post was advertised in December 2020. The worker stated that during this time from July 2020, an interim acting position was given to another member of staff (Senior Physiotherapist). The worker stated that she was not aware of any processes around this interim acting arrangement.

I note that the worker applied for the post and came second on the panel and that the employee who had the interim acting position secured first place on the panel. The argument put forward by the worker was that the post should have remained interim until the conclusion and outcome of the WRC hearing.

I am mindful of the efforts and lengths (as outlined by the worker at the hearing) that she went to in order to secure the checks and clearances for the position. I note she was given a start date for the new role and had informed all her colleagues that she would be commencing in a new role. The worker was put through a process, the expectation was that she was going to be appointed and at a very later stage the post was retracted. Based on the information presented, I find that there was a lack of communication and cohesiveness around the processes adopted by the employer which is very evident from the events that occurred in relation to this matter. Given the particular set of circumstances pertaining to the within dispute, I find that the worker’s claim of unfair treatment is well-founded. I find that the employer acted unreasonably in the manner in which it handled the matter. I note the worker’s considerable embarrassment and upset that ensued as a result of the sequence of events.

I find that the worker’s claim is well-founded. I recommend that the employer

(i)                  pays the worker compensation of €2500

(ii)                carries out a review of their processes and procedures in this area to ensure that they are in line with best practice

Industrial Relations Acts