Worker

Employer

Anonymised Parties

Medical Scientist

Health Services Provider

Representatives

Terry Casey Medical Laboratory Scientists Association (MLSA)

 Senior HR Manager

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-00049068

03/03/2022

The Worker was initially employed as a medical laboratory technician in 1999 and in December 2014 filled a temporary higher position of Specialist Medical Scientist. The dispute concerns what the Worker describes as her incorrect grading and renumeration in her position under the regularisation terms agreed under the provisions of the 2013 Haddington Road Agreement. The Worker submits that the grade allocated to her acting position did not comply with a HR Circular (hereinafter ‘the 2013 Circular’) and that the procedures and protocols applied by the Employer in the application of the circular constitute unfair and unequal treatment not comparable to the treatment of another employee in a similar position in the same workplace in the same period. The Worker is seeking to be regularised in the position of Chief Medical Scientist (Surveillance).

The Employer refutes the claim and submits that the post that the Worker is seeking to have regularised is already filled as part of a merging process, where two jobs are now done by one person, and that the Worker has already been offered the correct regularised position of Specialist Medical Scientist.  

On the 15 October 2013, the Haddington Road Agreement provisions on acting positions in the health services was circulated by the Employer’s National Director of Human Relations to all locations.

 In October 2013 the Employer’s Microbiology Laboratory Management progressed a recruitment campaign for the position of Medical Scientist Specialist (Surveillance). At this time the Microbiology Laboratory Management were unaware of the 2013 Haddington Road Agreement component on acting positions as it had not yet been circulated to them.

In February 2014 MS. A, who at that time was acting in the temporarily vacated Chief Medical Scientist (Surveillance) position since 2010, was successful at interview and appointed into the position of Medical Scientist Specialist (Surveillance).  However, under the terms of the 2013 Circular, Ms. A qualified for regularisation into the position of Chief Medical Scientist (Surveillance) and in June 2016 she was retrospectively regularised as Chief Medical Scientist (Surveillance).

 The Worker argues that if the terms of the 2013 Haddington Road Agreement component on acting positions as in Circular 2017 had been applied in a timely manner, then the recruitment campaign for the position of Medical Scientist Specialist (Surveillance) would not have been progressed. The Worker submits that under these circumstances, at the time of her appointment in November 2014, the position of her predecessor, in whose position the Worker was acting, would have been that of Chief Medical Scientist (Surveillance). The Worker submits that she carried out all the functions of Chief Medical Scientist (Surveillance) in her acting capacity.

 Following MS. A’s retrospective regularisation to the position of Chief Medical Scientist (Surveillance), the Worker contends that the Employer refused to recognise that the terms of the 2013 Circular should also be applied to her as she was acting in the substantive role of Ms. A. The Worker submits that the insistence of the Employer  to block the application of the terms of the 2013 Circular to her when she was in essence  acting in the Medical Scientist Chief (Surveillance) temporarily vacated by the previous incumbent (Ms. A), represents a breach in compliance with the Haddington Road Agreement and also represents unfair and unequal treatment of the Worker in comparison to the treatment of her colleague in whose position she was acting.

Following retrospective regularisation of the previous incumbent (Ms. A) in September 2016, the Worker was informed by the Employer that the grade of Chief Medical Scientist (Surveillance), which was now the substantive post of the previous incumbent, was transferred to Chief Medical Scientist (Microbiology) and held by Ms. A. The Worker asserts that the process followed, in the transfer of the grade, represented unethical practice not in compliance with Public Service promotion norms and effectively blocked the correct alignment of the Chief Medical Scientist (Surveillance) grade from being passed on to the Worker who continued to act in the previous incumbent’s substantive post. The Worker contends that there was no vacancy in the employment for the permanent position of Chief Medical Scientist (Microbiology). The Worker argues that the process of transfer/merger of positions which was followed had a detrimental impact on the grading of the acting position which the Worker occupied. This resulted in the proposal, by the employer, that the Worker would be regularised at the lower grade of Medical Scientist Specialist, in compliance with the terms of a subsequent of a subsequent 2020 HR Circular (hereinafter the ‘2020 Circular’).

The Worker made numerous representations to the Employer and also through her trade union (MLSA) in relation to the correct grading and regularisation of her position.  In 2020 a group of Unions, including the MLSA, negotiated and agreed terms with the Employer who subsequently published the 2020 Circular titled:  Confirmation in Post of those in Temporary Higher Appointments & Regulation of Temporary Higher Appointments.

 In January 2021 the Employer nominated the Worker for regularisation to the position of Medical Scientist Specialist (Surveillance) under the terms of the 2020 Circular. The Worker welcomed the proposal for regularisation; however, she postponed acceptance on the grounds that the grade of Medical Scientist Specialist (Surveillance) had been incorrectly aligned to the position in which she was acting. The Worker concludes that the correct grade should have been Chief Medical Scientist (Surveillance).

The Worker rejects the position that her claim is cost increasing under the Haddington Road Agreement but is instead about compliance with the Agreement’s provision on ‘acting up’ as allowed for in the 2013 Circular.

In February 2014, the position of Specialist Medical Scientist was advertised, and the Worker was placed 2nd on a panel. On 2 December 2014 the worker was offered, and accepted, the position of Specialist Medical Scientist on a temporary higher appointment basis. On 15 December 2020 the Employer issued the 2020 Circular which dealt with confirmation in the post of those in temporary higher appointments and regulation of temporary higher appointments.

On 10 August 2021, in accordance with the terms of the 2020 Circular, the Employer issued correspondence to the Worker outlining that she had been recommended for confirmation in the post under the terms of the 2020 Circular. On 11 August 2021 the Worker acknowledged receipt of the offer but replied she was not in a position to sign the contract because she was presently in dispute with the Employer. The Employer re-issued the contract to the Worker however she had failed to return it, to date.

The Employer position on the appointment of Ms. A to the position of Chief Medical Scientist (Microbiology) was that this came about as a result of a merger with the post of Chief Medical Scientist (Surveillance) and that Ms A was already Deputy to the Microbiology position. The Employer further maintains that as the Worker never attended management meetings when she was in her temporary position, she therefore could not pass herself off as carrying out the functions of the Chief Medical Scientist (Surveillance).

The Employer is satisfied that it has given full regard to the Worker’s contractual rights throughout the process and has also been fully compliant with the 2020 Circular.

The Employer contends that the Worker’s claim is cost increasing in nature and is accordingly precluded under section 1.27 of the Public Service Agreement.  

In conducting my investigation, I have taken into account the comprehensive relevant submissions presented to me by the parties, both verbal and in written form.

There are two events described in this investigation which I believe are pivotal to a fair resolution of the matter. Firstly, the delayed implementation of the 2013 Circular and secondly, the merger of the posts of Chief Medical Scientist (Surveillance) and Chief Medical Scientist (Microbiology).

The Worker made a convincing case that if the terms of the 2013 Circular had been applied in a timely manner, then the recruitment campaign for the position of Medical Scientist Specialist (Surveillance) most likely would not have been progressed in February 2014. At the time of the Worker’s appointment in November 2014, the position of her predecessor, in whose position she was acting, would have been that of Chief Medical Scientist (Surveillance), which in turn, would have created a legitimate expectation for the Worker that she would be regularised into the Chief’s role.  I believe that the Employer’s unawareness of the 2013 Circular started a process, unwittingly perhaps, where the Worker would be eventually disadvantaged. However, there were many “ifs and buts” along this path and to rely solely on supposition would do an injustice to the Employer.

Notwithstanding the foregoing, a subsequent event that directly impacted upon the career progression of the Worker was when the post of Chief Medical Scientist (Surveillance) was merged with that of Medical Science Chief (Microbiology) in 2016. Firstly, I note that information around this state of affairs was not readily available to the Worker. She had to use Freedom of Information requests as well as resorting to her trade union official for further support when seeking clarification from the Employer. Tellingly, in a reply to the official on 12 October 2021 the employer replied: “The regularisation of (MS. A) to the Chief Medical Scientist post in Microbiology was a ringed fenced agreement, on a personal to holder basis made by XXX (location) manager at that point in time.” The Employer originally seemed to suggest at the hearing that this ‘red circling’ arrangement was agreed with a representative body but the senior trade union official for the pertinent representative body, who was the Worker’s representative, expressed no knowledge of this arrangement. Furthermore, when pressed, it became clear that the employer could not satisfactorily explain the circumstances surrounding the merger of the two positions. Such obfuscation around a serious dispute was not acceptable.  What was clear to me was that such a merger of positions obstructed the natural career path of the Worker. The Haddington Road Agreement provisions on ‘acting up’ impose an implicit duty on all sides to have full transparency when senior positions are regularised from those in ‘acting up’ positions. Sadly, the Worker was kept in the dark about her position for an unacceptably long time. This was exacerbated by the fact that the provisions of the 2013 Circular were not applied in a timely fashion.  Having considered both sides’ submissions in this dispute I am satisfied that the Employer did not treat the worker fairly when it came to its obligation under the “acting up” provisions of the Haddington Road Agreement, at the material time.

The Worker is seeking regularisation of her position to that of Chief Medical Scientist (Surveillance). However, there is already a worker filling that post and I cannot realistically recommend creation of a new senior post. I believe that the Worker was denied a career path in an unacceptable manner by the Employer, and I recommend the following:

1.       That the Employer pay the Worker €8,000 compensation which I believe is a fair approximation of the loss incurred by the Worker over two years, had she been regularised in the Chief Medical Scientist (Surveillance) position.

2.       The Worker accepts the current offer from the Employer of regularisation into the post of Specialist Medical Scientist.

Acting-up, Haddington Road Agreement.