Complainant

Respondent

Anonymised Parties

An employee

Public Body

Representatives

Lisa Connell Fórsa Trade Union

Fiona Cheasty

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00044839-001

29/06/2021

The Complainant seeks regularisation into a temporary higher acting grade she has been in since 2012.

The Complainant started employment in the health services as a trainee nurse. She has

been promoted into several nursing roles since commencing her employment. In

2002 she was promoted to Acting CNM2 and she was made permanent in this role in

2006. She has been working as Acting Primary Care Lead Grade VIII

since 2012 on a Temporary Higher Appointment Contract.  In 2013 she began receiving the appropriate full pay at Grade VIII level.

In 2013 HR Circular 017/2013 was issued which dealt with the

regularisation of long-term acting posts of all grades. The Circular saw any

Acting grade regularised on a permanent basis based on a number of

conditionalities. One of the main conditions was that the post holder must be acting

continually for 2 years as of 31st December 2012.

The Complainant missed out on regularisation under Circular 017/2013 as she was

working in the role 1 year and 10 months and didn’t meet the timeframe

required.

Circular 017/2013 was negotiated based on the significant number of long-term acting up arrangements that existed nationally. The Respondent’s own policy on Acting Up arrangements specifies that Acting arrangements should not exceed 12 months and the Circular was to regularise these arrangements.

On the basis of not being encompassed under the regularisation process of 2013 the Complainant engaged with her line manager.  She was advised to appeal the outcome

by her local management and she formally appealed the decision in 2013.

Management sought a positive outcome for the Complainant.  She was supported by her own

line management in seeking regularisation into the permanent Primary Lead, Grade

VIII post.

However, despite formal appeal and supportive letters from her line managers to the appointed Arbitrator the Complainant remained in her substantive CNM2 post while Acting into the Grade VIII role and she was not regularised into the Grade VIII role.

The Complainant continued to raise the issue of the regularisation into the role, consistently since 2016. She also conveyed to management that she would be agreeable to see the permanent post advertised externally and that she would compete for the role. However, despite this, no action occurred in respect to her role in either permanently advertising the role or regularising her status.

In 2020 Circular 068/2020  was issued which sought to regularise staff in long-term Temporary Higher Appointments. The provisions of this Circular were broadly similar to the 2017 Circular and outlined clear criteria as to eligibility or ineligibility for the regularisation of staff. The Complainant was not encompassed under 068/2020 on the basis of this Circular was restricted up to a Grade VII level. As she is an Acting/THA VIII she was not encompassed given the cap on grades.

The Complainant wrote to management seeking the application of Circular 068/2020 to her, which was refused. She then formally invoked the grievance procedure. None of the stages in the Grievance Procedure yielded a successful outcome and offered no possible remedy in respect to the Complainant’s case and the case was then referred to WRC.

It is submitted that the Complainant has shown exceptional good-will to her employer, by agreeing, to move into different roles, when requested in order to set-up and structure different parts of the services.

She has missed out on the regularisation, into the Grade VIII role she has been completing for ten years, under two different Circulars.

The Respondent is in breach of their own policies by allowing an employee to Act-Up or work in a Temporary Higher Appointment basis for such a prolonged period. A memo dated the 18th January 2018 from HR, outlines that a THA “cannot extend beyond 12 months unless there are exceptional circumstances.”  The Complainant is now 10 years in her THA, there has been no clarification of any exceptional circumstances and as such the Respondent is in breach of their own Circular.  It is requested that the Complainant be regularised into the Grade VIII post she has occupied for over ten years and in order to have pension benefits applied it should be backdated to 2012.

The Complainant has carried out duties as Grade VIII Primary Lead Care since 30th January 2012 and has a temporary Higher Acting allowance.  In 2013, Circular 017/2013 regularised Temporary Higher Acting (THA) posts but the Complainant was not eligible to avail of this as she was not 2 years in post as at December 2012.  In 2016 management sought to fill the post on a permanent basis, however the embargo prevented this.   Circular 068/2020 was designed to regularise persons in THA posts.  The Complainant was not eligible to avail of this as it was confined to Grade VII and below.                                   It was expected that this situation might be addressed and Grade VII and above would be subject of a process.  However, the matter before the Supreme Court in Power paused the process.  The core view of the Respondent is that the Fixed Terms Work Act does not apply to staff in THAs who hold permanent contracts.

In summary, the Complainant has a Contract of Indefinite Duration.  She was assigned THA Grade VIII.  Her extension contracts provide that the arrangement would cease on a particular date or when a permanent appointment was made.  In the absence of an agreed process no mechanism exists to appoint the Complainant to a permanent post without breaching the recruitment licence.                     It is argued that if the claim is conceded it would create precedence.

The Respondent referred to a recent Supreme Court case Power v HSE which remitted back to the Labour Court a matter pertaining to the employment status of a Complainant, which it was argued would have a bearing on this case.   On the basis that this instant case is not being considered under the Protection of Employees (Fixed Term Work) Act and the fact that the Complainant has been pursuing her claim since in or around 2013, some nine years ago, I find that it is only just that I make a recommendation in this matter. 

I note the Complainant has been in post acting in a temporary higher capacity since 2012.  Circulars 017/2013 and 068/2020 did not apply to the Complainant and despite the strong support from her management, efforts to regularise her came to no avail.  The stated policy of the Respondent that no staff should be in acting positions for more than 12 months except in exceptional circumstances has been well breached in this case.  In the circumstances, I recommend that the Complainant’s grade be regularised as Grade VIII as a once off which cannot be cited as precedent.  The date of effect is from the date of acceptance of this Recommendation.  The Respondent’s information on pension entitlements received post hearing indicates that the Complainant will not be at a disadvantage if the post is not backdated.   

Regularisation into higher acting grade.