Worker

Employer

Anonymised Parties

A health service employee

A health service provider

Representatives

Michael Hayes, John Lyons, Psychiatric Nurses Association

Head of HR

SEO, HR Department

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-00047517-001

06/12/2021

The Worker commenced his employment with the Employer in 1979.

 On 6th December 2021 he referred a dispute to the Director General of the WRC with respect to the regularisation of a post.

The Worker was represented by Mr Michael Hayes and Mr John Lyons of the Psychiatric Nurses Association. The Union, on behalf of the Worker submits as follows.

This case pertains to the Worker’s claim in relation to his regularisation into a Clinical Nurse Manager 1 post. The Worker has been disadvantaged by the unreasonable actions of local management in processing a national agreed document in a manner unseen in any other service nationally. The PNA submits that, not only was direction given from a national level ignored but that the decision not to overturn this was based on flawed logic.

The Worker commenced his employment with the Employer in 1979. He retired in March 2022 following 43 years of service.

The Worker commenced acting as a Clinical Nurse Manager 1 (CNM1) in 2015. He continued in this role until 2020 when his Temporary Higher Appointment (THA) was terminated. This may not appear unusual and under normal circumstances would not, nonetheless, under a national agreement, agreed under the auspices of the WRC, PNA believes that the Worker already had an entitlement at the point of his THA being terminated.

In 2019, the PNA and the wider group of health unions, commenced a lengthy engagement with the Employer in relation to the regularisation of individuals who had been working in a higher capacity under the Temporary Higher Assignment (THA). This was done in an attempt to rectify legacy issues in relation to nurses experiencing lengthy periods in THA’s without ever being appointed. This was totally contrary to previous agreements and the relevant circular which “envisaged” all posts being filled within one year. Engagement on the issue was progressed under the auspices of the WRC and although a broad agreement was reached in February 2020, the on-set of the COVID pandemic delayed its publication until December 2020. The process for confirmation in posts was detailed in relevant circular that issued on 15th December 2020.

In July 2020, the Worker was informed by Nurse Management that his THA would cease on 26th July 2020. Considering that it was well known to all working within the Employer, at that time, that a regularisation process was shortly forthcoming, the Worker lodged a grievance on the decision. This grievance was lodged prior to the cessation of the THA.

Also in July 2020, the Senior ER Executive for the Employer’s Corporate Employee Relations, wrote to all areas regarding the WRC proposal. In this correspondence he outlined that work on the issue would be concluded by October 2020 and finished by stating “In the interim, it would be prudent to consider the information above, in the context of any planned permanent filling of posts, which are currently covered by way of a Temporary Higher Appointment”. A copy of this correspondence was shared with the PNA by the Senior ER Executive on 3rd September 2020 and was made available at the hearing.

The Worker’s grievance was not upheld at stage one or two. Stage three of the grievance was heard by the Head of HR, on 17th December 2020, and a result was given on 4th February 2021. This was 7 months after the initial grievance was lodged. In her conclusion the Head of HR made four main arguments as to why she did not uphold the grievance but primarily that the Worker did not meet 1 of the 5 criteria required under the Circular i.e., that the appointee “must continue to hold the temporary higher appointment post at the date of this Circular”.

The matter was then referred to the WRC.

Frustratingly, following the termination of the Worker’s THA in July 2020, a person who had replaced him from the national panel took up a different role as CNM1. In March 2021 they moved to a different area of service and the Worker was reappointed back into the position as the acting CNM1, where he remained until his retirement in March 2022.

Union’s Arguments:

PNA believes that the Worker has been harshly treated and that little thought has been given to the ramifications to him due to the decision to cease his THA. Every opportunity was given locally to attempt to rectify the matter but common sense on the issue was not forthcoming.

The Worker was in the post since 2015. The criteria for appointment being anyone in post from 1st January 2019. To say that the Worker qualified, would be an understatement. In fact, the Worker would later see several of his nursing colleagues with less years working under a THA, be appointed.

Nurse Management explained the decision as “random selection” but yet never attempted to fill truly vacant CNM positions within the service even though those positions had no one working in them whatsoever, THA or otherwise. The PNA cannot accept this argument and would put forward that, far from being random, the selection process was very much targeted.

The Head of HR’s Stage 3 outcome, which was made available at the adjudication hearing, is a detailed response and gives four main arguments to justify the decision made.

1.      “There was equality of opportunity for applicants including [the Worker] to apply for and be considered for a permanent CNM Position, something he does not appear to have availed of”. This position is simply ludicrous and without foundation. Circular 068/2020 sets out no criteria that would have required the Worker working under a THA to compete for a position. The reality is that numerous employees across the Health Service were appointed under similar circumstances to the Worker and also, never competed for the post on a permanent basis. This is not a reason for exclusion and should never have been considered as an argument. The Worker can’t be expected to jump through hoops that applied to no one else.

2.      “Had [the Worker] been appointed through acting in the role solely, albeit for a number of years, peers who had competed for the roles could justifiably complain that the [the Employer] was not complying with the codes of practice prepared by the commission for Public Service Appointments (CPSA)”. Once again, this justification for the decision made is a moot point. It is also a hypothetical argument with no foundation in the realities of the agreement because, factually numerous individuals, including dozens of PNA members were appointed through “acting in the role solely, albeit for a number of years”. The very reason that the National Agreement was agreed in the first place was to resolve legacy issues within the service. If there had been any question in relation to the Worker’s ability to carry the responsibilities and case load of the role, Management could have simply not renewed his THA on that basis. The protocol was put in place to benefit employees who had given years of dedication to their role. The PNA was very cognisant of the fact that the agreement created some problems but ultimately realised it solved far more than it created. The Stage 3 Grievance gives the impression that the Health Union Groups had not considered this possibility when we, of course, had.

3.      The main reason given for not upholding the Worker’s grievance was that “the post holder must continue to hold the Temporary Higher Appointment post at the date of this circular. The Worker satisfied 4 of the 5 criteria required for regularisation but not this particular one.” The PNA would assert that this was not the doing of the Worker but of the Employer themselves. On notification of the cessation of this THA, the Worker was advised by his Union to immediately initiate a grievance. When heard at stage 1, and prior to him stepping down from his CNMI post, the PNA sought the maintenance of the status quo and sought the maintenance of the Worker’s position until the grievance procedure was finalised. If this had been the case the Worker would have satisfied all criteria required. This decision made the task of resolving the issue locally impossible. The Worker had to wait nearly seven months for the grievance to be finalised. Fundamentally, the Worker would have satisfied all the criteria of the Circular but for the actions of the Employer.

4.      “That whilst there was speculation that regularisation of Temporary Higher Appointments, that there was PNA and local Management engagement around the urgent need to make permanent appointments”. This statement is true. The PNA’s position nationally was to fill posts via national competition. It was, simply put, the only game in town for many years. Nonetheless, this was only in relation to truly vacant posts. Once it became clear that a regularisation pathway was forthcoming, the PNA did whatever was necessary to protect those individuals and ensure their regularisation. This statement is an attempt to twist the narrative and give the impression that the PNA was speaking out of both sides of their mouth, which was never the case.

5.      Finally, the PNA believes it important to highlight one other issue stated in the correspondence by the Head of HR. “On 03rd September 2020, [redacted] of [Employee Relations Service] emailed Michael Hayes with an update on the WRC proposal which was due to issue after the 31st October”. This was a correspondence sent in July 2020 to all HR and ER departments nationally and asked all departments to be “prudent” in the context of any “planned permanent filling” of posts due to the agreement struck in the WRC. The PNA previously argued that the Employer management were not aware of this correspondence or its contents and never took its direction into consideration. It has been confirmed to the PNA since, in a previous WRC hearing that the management were aware of this correspondence. This revelation itself is an admission that the Employer disregarded directions made from national level.

Conclusion

The Worker has spent 43 years in the field of mental health. He worked in a higher capacity post for seven years to the highest level of professionalism and dedication. He was denied the opportunity to be regularised into the CNM1 post by management and their disregard of clear information corresponded to them by CERS. The decision, along with the 7-month grievance procedure timeline was detrimental to the Worker. Insult was added to injury with the reappointment of him to the very post he was removed from but, this time without any prospect of permanent appointment.

The PNA have, throughout this process, advocated for the Worker to be appointed permanently. If the PNA had any concern regarding the implications of such a move, it would not be in attendance at the hearing.

The PNA is seeking that the Worker is appointed as a CNM1 as per Circular 068/2020, that he is retrospectively paid, and his pension entitlements are amended to reflect same.

The Employer submits as follows.

The Worker is a former Senior Staff Nurse - dual qualified, who acted in a Temporary Higher Appointment (‘THA’) capacity as a Clinical Nurse Manager 1 (‘CNM1’) from 01/10/2013 until 26/07/2020. He was subsequently assigned a further THA effective from 05/04/2021 until 06/03/2022. He retired on 7th March 2022 and is therefore no longer an employee.

The substantive matter relates to the fact that the Worker did not meet the requirements of the Temporary Higher Appointment Circular 68/2020 issued on 15th December 2020 and was therefore not regularised into a Clinical Nurse Manager 1 post. The role that he was acting in was filled permanently via a national recruitment competition, which the complainant did not apply for.

Background

The Worker began his career with the Employer on 2nd October 1979 as a Senior Staff Nurse - dual qualified. In the period between October 2013 and July 2020, the Worker worked in an acting CNM1 role based on seniority without any formal application or recruitment competition. His THA ceased on 27th July 2020 and he reverted to his substantive post. The Worker was assigned into a further THA from 5th April 2021 until 6th March 2022.

The THA role that the Worker was acting in was filled permanently via a national recruitment competition, which the Worker did not apply for. The National Recruitment Services (‘NRS’) campaign was advertised for 2 weeks on the Employer’s website from 5th July 2017 to 19th July 2017. The ADON Regional Development, issued e-mail correspondence to colleagues including the Worker on 14th July 2017 highlighting details of same. The Worker had the opportunity to apply for this campaign. Internal records confirm that he was at work in July 2017 when the CNM1 opportunities were advertised.

On 9th March 2020, the Service submitted a relevant form approving the filling of the position which was approved by the Chief Officer on 6th April 2020. The role was submitted to the National Recruitment Service and was offered to the relevant panel. The PNA urged the Employer to make permanent appointments from the national panel and this is what transpired.

The Worker received a letter on 23rd June 2020 from the Regional ADON, to say that the position he had been acting in had been filled via a national competition, that his Specific Purpose Contract was ending on 26th July 2020 and thanking him for his work in the post.

On 2nd July 2020, the Worker wrote to the Area Director of Nursing, stating that he would like to lodge a grievance and asking that his acting post be maintained. The initial grievance and the Stage 2 grievance were not upheld.

The CNM1 role the Worker was acting in was filled on a permanent basis on 27th July 2020 when an appointment was made from the aforementioned national panel. That appointee remained in their role (their substantive post) until 4th April 2021 before moving to another temporary role. On 5th April 2021, the Worker again took up a THA at CNM1 level. The permanent appointee to this position reverted to their permanent substantive role on 18th July 2022.

HR Circular 68/2020 re: Confirmation in Post of those in Temporary Higher Appointments and Regulation of Temporary Higher Appointments was issued on 15th December 2020, over 4.5 months after the Worker had reverted to his substantive post and was no longer acting up.

In order for the Worker to be regularised into the CNM1 post, he would have had to satisfy the following eligibility criteria encompassed by the Circular, but he was unable to do so:

1.      Must have held the single specific post on a temporary higher appointment basis continuously since the first appointment date;

2.      Must have been appointed to the temporary higher appointment on or prior to 1st January 2019;

3.      Must have been paid at the rate for the higher appointment (as outlined under HR Circular 08/2016);

4.      Must have held a permanent contract in their substantive post immediately prior to their temporary higher appointment;

5.      Must continue to hold the temporary higher appointment post at the date of this Circular.

The Worker did not meet the criteria on the basis that he was not acting up in the CNM1 role when the Circular was issued on 15th December 2020.

A Stage 3 grievance was heard on 17th December 2020 by the Head of Human Resources. The Worker was represented by Mr Michael Hayes, Deputy General Secretary, Psychiatric Nurses Association. Circular 68/2020 had just issued that week re: the Confirmation in Post of those in Temporary Higher Appointments & Regulation of Temporary Higher Appointments and Worker’s contention was that, had the role not been filled via a national competition, he would have continued acting up and been eligible to have been confirmed in the post. In actual fact, the role was filled via a national competition as per the CPSA Code of Practice and also on foot of representations and agreement with the PNA.

The detailed Stage 3 decision was given by the Head of Human Resources, on 4th February 2021. The grievance was not upheld. The delay in issuing a decision was due to industrial action at the time.

It is noteworthy that, to benefit from a previous circular re: Regularisation, HR Circular 17/2013, a colleague had to be acting up continually for 2 years as of 31st December 2012. Since the Worker commenced his THA on 1st October 2013 he did not meet the eligibility criteria to be regularised.

Following all 3 stages of the internal grievance procedure, the matter was referred by the PNA to the WRC.

The Employer’s position

In February 2020 the PNA brought to management’s attention the potential cessation of the CNM1 panel by year end which was discussed at the PNA meeting on 3rd March 2020. Nurses were frustrated at the lack of progress in filling roles from the panel at a time when it was anticipated that it was due to expire. Numerous e-mail communications were received from peers of the complainant in February 2020 and indeed later in the year urging management to appoint them based on their panel placements. Concerns raised were as follows:

·        Staff members who successfully interviewed and panelled claimed that it was disheartening that their hard work of undertaking an interview may not be rewarded;

·        An active panel existed, nurses who secured positions on the panel were waiting to fill the posts they had competed for, and they were aggrieved that they were being occupied by others in an ‘acting up’ capacity;

·        Positions were not being made available within the named location whilst roles in other CHOs were being offered from national panels;

·        Panel members were keen to advance to the CNM1 posts they had earned via the national competition which was competitive and merit based. They stated that all eligible staff, including those in acting roles, had the opportunity to apply for a permanent CNM1 position but either were not successful in their applications or chose not to apply. They re-emphasised that acting roles by their nature are temporary.

On 4th March 2020, the Area Director of Mental Health Nursing e-mailed the Branch Secretary PNA, in relation to the filling of CNM1 posts. She wrote: ‘Dear [name], Further to our meeting yesterday, to consider staff concerns and to agree a plan going forward in respect of CNM1 vacant posts, I would appreciate confirmation from you that there will be no repercussions from your members with regard to regularisation, if as discussed and agreed at our meeting we proceed with the filling of our vacant CNM1 positions across [named location]. As you will appreciate we cannot have a situation where we have filled the vacant positions in good faith and in discussion and agreement with you as the PNA representative and down the line we have PNA members applying for regularisation. This is simply not a position that we can find ourselves in. Following confirmation from you, we will proceed to filling these posts.’

The response received from the Branch Secretary PNA, on 5th March 2020 was as follows: ‘Thank you for your prompt response to the concerns raised regarding the filling of vacant CNM1 posts… It is PNA policy to fill all vacant posts from national panels. Could I ask you as a matter of urgency to proceed with the filling of these posts from the national panel. There is no regularisation of posts for those people who are in Specific Purpose Contracts at this time and there may never be any regularisation of any posts of a promotional grade in the mental health services in the future. We cannot deal with speculative conversations and must be proactive in appointing people from the national panels before they expire.’

On 10th March 2020 the Area Director of Mental Health Nursing wrote to Senior Management within her team advising that ‘As [Branch Secretary PNA] confirmed, the PNA position is to fill all vacant posts from national panels and this is in the knowledge that there may be a regularisation process which may affect a few of their members in the future. You will remember that this issue was raised in our meeting with him on the 03-03-20. I have spoken to [Branch Secretary PNA] today and I would advise that we proceed to filling the vacant CNM1 posts from the national panel…’

It is clear from the above-mentioned e-mail correspondence that the Branch Secretary, on behalf of the PNA, requested that all vacant CNM1 posts be filled without delay from the national panel. Senior Management were cognisant of and anticipated the potential issues that may arise from this course of action, which is why the Area Director sought confirmation and agreement from the PNA to proceed accordingly. It seems ironic that the PNA have submitted a complaint on behalf of the Worker to the WRC that appears to contradict agreement already given to nurse management where they were advocating the appointment of people from the panel, in order of merit, as per CPSA guidelines.

The ADON subsequently confirmed to the management the PNA position to fill all vacant posts from the national panels in the knowledge that regularisation may affect some PNA members in the future.

On 9th March 2020, the service area submitted a relevant form approving the filling of the position which was approved by the Chief Officer on 6th April 2020. The Human Resources department sent the job order to NRS for expression and offer to the national panel, and a successful candidate was offered and accepted the post with a start date of 27th July 2020, in compliance with the CPSA Code of Practice.

On 4th June 2020 a PNA representative emailed a member of the management stating that ‘The PNA have been informed by managers in HR nationally that any vacant posts that are in the Mental Health system and that where a panel exists would be filled without delay if submitted immediately… As such there may be a window of opportunity in which to get such posts filled permanently. I would be grateful if action could be taken in this regard.’

On 24th June 2020 the same PNA representative e-mailed the Area Director noting that ‘…Any vacancies should be processed through panels that are in situ. Indeed we have requested that vacancies would be sent for processing immediately through HBS as advised by HR CERS.’

The competition run by NRS for CNM1s enabled the Employer to deliver on Principle 2 of the CPSA Code of Practice with appointments ‘made on merit… through a transparent, 6 competitive recruitment process.’

There was equality of opportunity for applicants including the Worker to apply for and be considered for a permanent CNM1 position, something he elected not to avail of. Other colleagues of the Worker in a similar acting up position applied for and were successful in the national campaign and were appointed to permanent CNM1 roles.

On 3rd September 2020, the Employee Relations Manager e-mailed Mr Hayes from the PNA, with an update on the Temporary Higher Appointments WRC Proposal which was due to issue after 31st October 2020 and which in fact issued on 15th December 2020 from the National HR Director. Earlier in July 2020, CERS had advised Heads of HR and ER departments to be “prudent” in the context of any ‘planned permanent filling’ of posts due to the WRC Agreement (re THAs).

From the Employer’s perspective it is significant that the Job Order to fill the position with a permanent CNM1 from the national panel had been approved on 6th April 2020 and was already in progress several months in advance of the communications referred to in section above. This point was already clarified by the Employer in a previous adjudication hearing.

Conclusion

There were two potential avenues by which the Worker could have secured a permanent CNM1 role.

·        The first was via the national recruitment competition. The Worker was notified of same and had the opportunity to apply but it appears that he chose not to.

·        The alternative was to meet the 5 eligibility criteria set out in HR Circular 68/2020. The Worker was unable to do this on the basis that he was not in the post on 15th December 2020.

Unfortunately, on the basis of the Worker not participating in the national competition and not being in the THA post on the issue date of the above circular, regularisation into the CNM1 role was not possible. The Employer is satisfied that the Circular was evaluated and reviewed on behalf of the Worker; while his application was considered, he was unsuccessful. Another colleague had been permanently appointed into the CNM1 post months previously, in July 2020, after securing same via the national competition. Other staff members within Mental Health Services who were acting into CNM1 posts were hired into their roles permanently after successful participation in national campaigns - they applied, were interviewed and placed on a panel prior to securing the posts. These appointments were via a transparent, competitive recruitment process. Had the Worker been appointed through acting in the role solely, peers who had competed for the roles via the national competition could justifiably complain that the Employer was not complying with the Commission for Public Service Appointments (CPSA) Code of Practice.

The PNA urged the Employer to fill the permanent CNM1 posts from the panel and this is what happened. By way of e-mail correspondence in March 2020, the PNA, confirmed to the Area Director of Mental Health Nursing, that all vacant CNM1 posts should be filled without delay from the national panel and the Employer proceeded in this manner. The stance taken by the PNA was further emphasised by the PNA Representative, who contacted the Area Director of Mental Health Nursing, on 24th June 2020 regarding the issue of regularisation, stating ‘…Any vacancies should be processed through panels that are in situ. Indeed we have requested that vacancies should be sent for processing immediately through HBS…’

The Worker’s pension entitlements were calculated on the basis of

a) his basic pay as a Senior Staff Nurse - dual qualified, and

b) his pensionable allowances.

Pensionable allowances included the differential in pay between a Senior Staff Nurse – dual qualified and a CNM1. The allowances were calculated using the best three in ten formula (the best three years in the last ten pre-retirement). Therefore, Worker’s pension entitlements have already been maximised.

Had the Worker applied for the CNM1 role in 2017 and been panelled and offered a permanent role, his substantive salary would have been that of a CNM1. He did not avail of the opportunity to apply for this competition. Another colleague was panelled and appointed permanently to position and the Employer cannot permanently appoint two people into the same position number. Therefore, the employer respectfully submits that this grievance is unfounded.

In conducting my investigation, I have given careful consideration to the parties’ written and oral submissions.

It was undoubtedly very disappointing for the Worker not to have been appointed as a CNM1 on a permanent basis and to have to revert to his substantive grade in circumstances where he had been acting up in a more senior position for nearly seven years.

I note that from March 2020 onwards, the Employer and the PNA were in communication and in agreement in relation to the filling of vacant CNM1 posts from national panels. I note that the PNA wrote to the Employer on 5th March 2020, confirming that any vacant CNMA position in the relevant location should be processed through existing panels;-

“It is PNA policy to fill all vacant posts from national panels. Could I ask you as a matter of urgency to proceed with the filling of these posts from the national panel. There is no regularisation of posts for those people who are in Specific Purpose Contracts at this time and there may never be any regularisation of any posts of a promotional grade in the mental health services in the future. We cannot deal with speculative conversations and must be proactive in appointing people from the national panels before they expire.’

The PNA’s position was reiterated in the email of 24th June 2020.

I note the PNA’s assertion that any such agreement was prior to the July 2020 email from the Senior ER Executive of the Employer who advised that “In the interim, it would be prudent to consider the information above, in the context of any planned permanent filling of posts, which are currently covered by way of a Temporary Higher Appointment”. The specific date of the email was not provided.  However, the process of filing of the position the Worker had been acting-up in commenced on 9th March 2020 and, at its conclusion, a successful candidate was offered and accepted the post with a commencement date of 27th July 2020. On 23rd June 2020, the Worker was informed that the requirement of him to act up to the CNM1 role ceased and that the position had been filled via a national competition. It is clear that the process agreed between the Employer and the Union regarding the filling of the relevant position commenced some four months prior to the advice issued and concluded by the time the email was issued.

The Circular Confirmation in Post of those in temporary Higher Appointment & Regulation of Temporary Higher Appointments issued on 15th December 2020 and provides for regularisation of acting up arrangements.

In light of the agreement that was in place, it is not within my remit to recommend any special treatment for the Worker in the herein case which would be contrary to the provisions of the agreement between the Employer and the Union.

Having taken into account the written and verbal submissions of both parties, I do not recommend in favour of the Worker’s claim.

Regularisation – acting up