Complainant

Respondent

Parties

Shane  Gill

Health Service Executive

Representatives

David Field , Forsa

 Fiona Osborne - HSE HR Dept.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043357-001

01/04/2021

The area of operation is a HSE Internal Printing facility - formerly called the EVE Centre.

The issue in contention is the regularisation of the status (temporary/permanent) of the Complainant.

The Complainant began work with the HSE in 1995 and is still employed there.

He is graded and paid as a Permanent Grade 5 acting as a Grade 6 but is actually employed, on a daily basis, in a Grade 7 position. The Complainant has been doing the job most satisfactorily for some 9 years, which fact is recognised by all Parties.

He is paid Fortnightly at a gross pay of €2,008 and works a 39-hour week.

The Complainant has a long and well-respected career in the HSE. In March 2019 he applied to the National Job Evaluation Scheme for a review of the Grade 5 position, Printing Centre Manager, he held then and still holds. The Evaluation Board recommended that the position be upgraded by two levels to a Grade 7 ranking. This 2-level increase was an almost unique decision. The Complainant and his Union, Forsa - then sought to have the Complainant regularised in the Grade 7 position. He actually has been doing the job for almost 9 years.

The HSE argued that it was the Job that had been evaluated, not the job holder, and that as a consequence the position would have to go to Public Competition before being filled. It was recognised by all sides that the Complainant was in the job for a number of years and the issue of his appointment on a Permanent status was largely a bureaucratic issue. In May 2021 a virtual meeting took place between Forsa and the HSE and both sides undertook to see if they could use internal influence to have the matter resolved and the Complainant appointed.

The Complainant was appointed to “Supervisor in Charge” Grade 5, effectively Printing Centre Manager, in October 2013. He applied to have the position Job evaluated in 2017 and a grade 7 position was the result. This application was supported by his local Superiors. On the Application for Regrading form the Complainant’s tile was “Acting Manager HSE Print and Design”. The Job Evaluation panel graded the position but not the Acting/Temporary status of the incumbent. The conferring of Permanent status on the Incumbent as a Grade 7 was not the role of the Evaluation panel.

In discussions the HSE Representatives were most sympathetic to the Complainant but felt that their hands were tied due to agreed recruitment rules and practices.  It was hoped that local discussions might find a way out of the impasse.

3:1       Legal Position.

It was recognised that this complaint was brought under Section 7 of the Terms of Employment Information Act ,1994. Section 7(2) is the most pertinent reference.

(2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of  sections 3, 4, 5, 6or 6Cshall do one or more of the following, namely—

( a) declare that the complaint was or, as the case may be, was not well founded,

( b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under  section 3, 4, 5, 6or 6C  , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

( c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

( d) [ in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)]order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977. 

It was recognised by the Parties that on strict examination no breaches of the letter of the Act applied in this case.

However, all cases rest on their own evidence and it is necessary to consider this.

3:2        Consideration of the evidence both written and Oral Testimony presented

The evidence pointed to a somewhat bizarre situation. The Complainant had been in the job for some 9 years and in his time, he had secured a regrading of the Position to a Level 7. However, his substantive position was that of a Grade 5 -Supervisor in Charge even though for most of the period since 2013 he had carried the title of Acting Manager. His local Managers are completely supportive of his regularisation as a permanent Grade 7.

The only solution proposed was that the position be advertised, and the Complainant apply in open competition. No guarantees could be offered in advance and a Grade 7 vacancy would possibly attract a wide field of applicants.

However, it was pointed out by Forsa that similar type long term temporary arrangements in other parts of the HSE had been quietly resolved by negotiation in the past. There was nothing to prevent this happening here.

From Adjudication experience, of many other cases, this had to be seen as a very valid argument.

Having considered all the evidence, both written and oral, it was recognised by the Adjudication Officer, that the entire situation was more appropriate for a referral under the Industrial Relations Act, 1969 rather than the 1994 Information Act.

3:3       Conclusion.

As a complaint under the Terms of Employment Information Act,1994 the complaint is not well founded on strict legal grounds.

However, the situation needs an urgent referral under the Industrial Relations Act,1969

Information Act,1994, Regularisation of Long-Term Temporary position,