LCR22907

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00035189 (CA-00046306).

BACKGROUND:

The Worker appealed the Adjudication Officer's Decision under Section 13(9) of the Industrial Relations Act 1969 on 4 October 2023. A Labour Court hearing took place on 11 January 2024.

DECISION:

The Court has given very careful consideration to the written and oral submissions of the parties.

The dispute before the Court relates to the appointment of the worker to the position of candidate Advance Nurse Practitioner (cANP). It is the clear objective of both parties that the worker advance to that position, which is an interim step, subject to achieving the regulatory standards, to appointment as an Advance Nurse Practitioner. It is clear that both parties are committed to the worker ultimately achieving a position as Advance Nurse Practitioner.

The proposition that the worker embark on the role of cANP was raised in 2015 and indeed an advertisement for such a position was placed in national newspapers in 2015 seeking applications, with the apparent expectation that the worker would be a successful candidate in any competition. In the event, that competition did not advance to interview or appointment stage.

Following on from that failure to conclude a process of recruitment at that time, the worker intermittently raised the issue with her direct line managers and does not appear to have secured clarity as to why the competition had not been held. Ultimately, she raised a grievance in 2020 through the procedures in place in the employment and, in the course of advancing that process, the employer asserted that the recruitment of a cANP was not advanced in 2016 or since due to budgetary factors.

In 2020 the employer offered the worker a contract of employment to reflect her intended appointment as a cANP. The employer asserted to the Court that the same or similar contracts were offered to a number of persons in that same year and each year thereafter. In those cases the workers concerned accepted the contracts and were appointed to the role of cANP.

In the case of the worker, she was not satisfied to accept that contract in the terms contained therein. This is not a unique set of circumstances in the view of the Court, and, commonly, where the terms of the proposed contract are not agreed, the intended appointment of a worker is not pursued by either party thereafter. In this case, the parties continued to engage to achieve a compromise on the matters which the worker identified as unacceptable in the contract which had been offered to her.

The parties confirmed to the Court at the hearing that the resolution of a range of matters, including contractual matters, had been achieved between them and that two matters remained outstanding and requiring to be considered by the Court. These were:

• The claim of the worker for compensation in the amount of €100,000 in respect of losses of wages and pension suffered by her as a result of the failure of the employer to appoint her to the role of cANP in 2016, and,
• The worker’s claim that certain clinical duties which she had been undertaking for many years as a nurse should be included in the job description attaching to her performance of the role of cANP.

Both of these claims were rejected by the employer.

The Court heard from the parties in oral submission at the hearing and had received earlier comprehensive written submissions from both.

The worker was not appointed to the role of cANP in 2016 or any time since. The fact that she was not appointed at any time since 2020 appears to reflect a failure of the part of the parties at that time to agree the contract of employment under which she would take up that role.

Prior to 2020, the fact that she was not appointed to the role reflected what the employer asserted were budgetary constraints inhibiting the conduct of a recruitment competition. In the view of the Court this has not been a unique experience across health system in recent years at least.

As regards the dispute between the parties around the content of a job description for the role of cANP as would be applicable to the worker, the parties are disagreed as to the inclusion of two clinical procedures which have been carried out for many years by the worker in her role as a Clinical Nurse Specialist.

The Court notes that the procedures at issue have never been included in a job description for the role of Clinical Nurse Specialist in which the worker is currently engaged, and that, notwithstanding that reality, she has been carrying out those procedures without inhibition or impediment for many years, presumably at the behest of the employer.

In all the circumstances the Court recommends that:

1. The parties accept that no basis exists in pragmatic reality for the worker to receive a payment as if she had been appointed to the role of cANP in 2016. She was not appointed to the role and has not performed the role and the Court can see no reasonable basis for concession of the worker’s claim in this regard.
2. The parties acknowledge that, as a matter of fact, the worker’s performance of the two clinical procedures at issue in the dispute surrounding the content of the proposed cANP job description of the worker has never been affected by the fact that such procedures were never included in her job description as a Clinical Nurse Specialist. There is no reasonable basis for the Court to assume that a continuing absence of a reference to these procedures in her job description as a cANP will affect her performance of such procedures as required at the behest of the employer into the future. The Court therefore recommends that the parties accept that the absence of reference to such procedures should not prevent the conclusion of an agreed job description for the worker in the role of cANP.

The Court has had regard to the extensive history of this matter and the good faith of both parties in that context. It is the Recommendation of the Court that, in the interest of good industrial relations, the employer should make a gesture of goodwill to the worker and, without prejudice, make a payment to her of €7,500 in full and final settlement of the within trade dispute.

The recommendation of the Adjudication Officer is affirmed in this respect.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
23 January 2024	Chairman