Complainant

Respondent

Anonymised Parties

Employee

Public Body

Representatives

ÁIne Feeney SIPTU

 HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00044739-001

22/06/2021

The Complainant seeks to be regularised into a CNM2 grade which she has been acting up in for in or around 8 years.

The Complainant has service since 1977.  She was appointed to an acting role of CNM2 in November 2012. HR Circular 017/2013 had issued in October 2013 catering for the regularisation of acting posts.  The Complainant applied to have the terms of the circular applied, and while that did not succeed, on the basis that the timeline criteria had not been fulfilled, the Arbitrator found that she fulfilled the acting requirements and should be paid accordingly.    In September 2019, having acted in the CNM2 role for almost 6 years, the Complainant was told she was to return to her substantive role of CNM1.  Given the set of circumstances and the impact, the Complainant went on sick leave.  In January 2020 she lodged a grievance which was not upheld.   When she returned from sick leave she was again placed in an acting CNM2 role.  At the time she was removed from the CNM2 role in September 2019, the Unions and Management were at an advanced stage in negotiating a renewed position to acting similar to that which pertained in 017/2013.  The Pandemic delayed matters and in December 2020 Circular 68/2020 issued.     However, due to the break imposed by her removal from post in September 2019, the Complainant could not avail of Circular 68/2020.    The Complainant alleges that in September 2019 she was deliberately moved ultimately so she could not avail of that Circular.   The Complainant put forward names of comparators whom she believed were given more favourable treatment than herself when regularising positions.  It is argued that the Complainant has been acting in the higher post of CNM2 for virtually nine years, and that she has, through the actions of management not been able to avail of the Circulars designed to remedy such a situation as she has been in for those years, without the attendant benefits of permanency.  The Complainant should be regularised in her position and compensated for the distress this entire matter has caused to her.  

The Respondent recounted the chronology of events since 2012 when the Complainant was placed in an acting position.  The matter had previously been dealt with by the Complainant’s solicitor and the correspondence between the parties was provided.  The Respondent contends that there was no guarantee of permanency in the position and any filling of jobs must be carried out in accordance with the Respondent’s code of practice in relation to recruitment and promotion.  In September 2019 the position the Complainant occupied on a temporary basis was filled from the permanent panel.  This necessitated the Complainant reverting to her substantive position.  She was advised at the time of a number of expressions of interest for permanent and temporary CNM2 positions, but she declined to apply for any of them.   The provisions of Circular 017/2013 did not apply to the Complainant as she did not fulfil the timelines, in that she was not in post for 2 years or more as at 31 December 2012.  Circular 68/2020 did not apply as the following provision was not applicable:

“employees must have been appointed to the temporary higher appointment prior to 1 January 2019 and must continue to hold the temporary higher appointment post the date of Circular December 2010”.

It is submitted that the Complainant was never appointed to the temporary higher appointment and her acting role ended on 9 September 2019.  Therefore the terms of 68/2020 did not apply.                       The Respondent argues that any regularisation of the Complainant’s position would undermine the principles of the Code of Practice introduced in the context of the Public Service Management (Recruitment & Appointments) Act 2004.

I do not hold with the Complainant’s contention that she was deliberately moved in September 2019 to avoid the provisions of a Circular which issued some fifteen months later.  I also find it is unfortunate that she did not apply for the CNM2 expressions of interest advised to her.                    However, the length of time that the Complainant was in an acting position is far in excess of the Respondent’s stated limit of no more than 12 months in the absence of exceptional circumstances.  I note the Arbitrator’s finding in 2015 that the Complainant should have been given a temporary contract for acting. The possible failure to carry this out which was alluded to at the hearing, may have led to the Respondent’s assertion that one of the reasons she could not avail of Circular 68/2020 was that she was ‘never appointed’ in an acting position.  The fact that she was advised in August 2019 that she was being moved back to her substantive role also led to Circular 68/2020 not being applied to her.  The fact of the matter is that practically the Complainant was in an acting position for some 8 years by the time she submitted her referral to WRC.   In the circumstances, I recommend that as a once off, without precedent her position be regularised as a CNM2.  The location can be discussed between the parties.     

Regularisation of position.