Worker

Employer

Anonymised Parties

A Psychiatric Nurse

A Public Health Service

Representatives

Niall O Sullivan Psychiatric Nurses Association

Eamonn Ross Employee Relations 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

IR - SC - 00002245

20/02/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The worker submitted that she was passed over for appointment to a three-month temporary position. She had applied to and qualified for a place on the panel for Clinical Nurse Manager Level 3 (CNM3). The panel went live in February 2020 and expired in February 2023 (it had been extended for a further year).  The worker was notified of the expiration of the panel. The worker submitted that two weeks later she became aware that a post at CNM3 level was being filled by a person who had previously been acting up on a specific purpose contract. The worker submitted that she was very upset by this and immediately contacted her union.

The worker sought to initiate the grievance procedure and received a decision letter relating to the Stage 1 grievance in June 2023. She submitted that the decision was that there had been unfair practise in relation to a selection process which was not governed by policy and although there were some merits to her grievance, It was not upheld.

The worker appealed this decision, and the outcome of the Stage 2 grievance was issued in August 2023. The worker felt that the outcome did not address her substantive complaint at all and that she was not being listened to. The worker initiated a Stage 3 grievance in December 2023 and was issued with a decision in February 2024. The worker noted that this did not uphold her grievance but did acknowledge for the first time that the position was a compliance post.

The worker submitted that although a permanent post became vacant in November 2022, the decision to fill this post was not made until Quarter 2, 2023 by which time the existing panel had expired. The post went live for advertisement in July 2023.

Around the same time as the panel was expiring, a requirement for a CNM3 specific purpose position arose and this was filled by a person who was filling another specific purpose contract at CNM3 level. The worker submitted that being the next person on the panel, she should have been appointed to that position.

The worker submitted that the conditions for filling an emergency short term appointment as agreed by the employer were not adhered to.  The worker submitted that she was passed over for promotion and whether this was by accident or design is immaterial as the impact it had on her was the same. Her confidence has been severely impacted, and she is concerned that it will impact her future promotional prospects.

The worker is seeking that the WRC uphold her grievance that she was unfairly passed over and recommend that the employer appoint her to a role at the position that she successfully interviewed for.

The employer does not accept that the worker has been disadvantaged in any way in terms of promotional opportunities. The temporary position that the grievance refers to relates to a specific role confined that lasted for approximately 3 months.

The employer noted that the worker was successful in applying for a panel for a CNM3 position. She was placed number six on the panel. The panel went live in February 2020 and expired in February 2023; the duration of the panel included an extension of 12 months to the original duration of the panel. A permanent post at this level became vacant in November 2022 but at the time the Area Director of Nursing was looking at a possible reconfiguration of the post. A decision was not made on whether to fill this position or not until Quarter 2 of 2023 at which point the existing panel had expired. The post was advertised in July 2023 and the worker did not apply for the position.

The special purpose CNM3 position was filled by a person who had experience of the project work which needed to be completed within three months. That person was hired to fill a maternity role where the holder had returned to work earlier than anticipated. This person was asked to complete an urgent piece of work for a limited time which finished on 7 July 2023. The work required was specific to a certain section and the staff member assigned was already familiar with the tasks from her time working in that section previously. There was no specific post but a legal requirement to complete the piece of work in a timely fashion in order to mitigate against enforcement action.  The employer submitted that it was field by an available person from within the existing resources at the discretion of the Area Director of Nursing.

The employer submitted that the worker was not happy with the decision to offer the work to her colleague and was of the view that the CNM3 role in Quality and Compliance was now filled.  She invoked the grievance procedure noting that the position was filled without any competition and should have been assigned to her on the basis of her position on a panel that expired in February 2023. The complaint was heard at 3 Stages and the Head of HR did not uphold her grievance in the final Stage. The Head of HR acknowledged in her decision that there was a clinical need that needed immediate action resulting in the decision taken by management to offer this temporary role to the employee already working in the area.

A permanent post at CNM3 was advertised in July 2023 with a specific job description attached to the role. The worker did not apply for this position.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

In summary the worker applied for a panel for permanent positions at CNM3. She had already been acting in a role at that level.  She was placed sixth on the panel and although offers had gone out to people appointed up to place 5, the panel expired without the workers position being reached. I note that the panel had already been extended for 12 months longer than it had initially been created for.

The position that the worker is complaining about is a temporary position for a specific piece of project work that lasted for approximately 3 months. A colleague of hers who was on a temporary acting up contract was available, and had the experience, to move into this project role. It was a temporary time bound project which needed to be completed in order to avoid regulatory repercussions.

From the employer’s perspective it had a person who had been given a temporary contract in an acting up position, who became available a number of months early, and who had experience in the area needed to complete the project. The panel set up for CNM3 roles had expired and using the resource is available to it, the colleague who was acting up for a further three months was assigned to complete the project work.

The worker suggested that she was passed over for promotion however this was not a promotion position, it was an acting position for three months to fulfil a particular need. Although it may have been useful to consider staff over on existing panels, the panel had expired.

In the circumstances I consider that it was reasonable to use an existing resource, which had already been factored into budgets to fulfil the need arising – the colleague was in an acting up position, to fil a temporary position.  I do not find that the worker has been passed over for promotion.  As to the suggestion that she should be appointed to a role for which she was on an expired panel, there was no full-time role available at the time of the expiration of the panel.  However, it would be useful for the employer and staff representatives to revisit the guidelines as to how to fill temporary posts arising out of urgent need and to agree procedures for filling future temporary vacancies that arise.

Furthermore, the suggestion that this may impact on her future prospects is not borne out, as the worker herself did not seek appointment to the permanent position when it became available.

IR complaint – panel expired – filling temporary acting post arising under an urgent need