FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EXECUTIVE - AND - F�RSA DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Permanency issue.
BACKGROUND:
2. This dispute could not be resolved at local level. As agreement was not reached, the dispute was referred to the Labour Court on 4 July 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 9 August 2018.
UNIONS ARGUMENTS:
3. 1. The five employees involved have filled a permanent and fixed need for the organisation with varied and unspecific contracts.
2. The employees performed the duties and responsibilities of the posts despite the absence of any contract.
3. After four years a genuine expectation of permanency was created by the employer resulting in missed opportunities elsewhere in the organisation for the employees.
EMPLOYER'S ARGUMENTS:
4. 1. The Grade VIII employees are currently in temporary Specified Purpose Contracts.
2. The employees would have been very clear that they were appointed on a temporary basis and that to secure the post on a permanent basis they would have to compete in due course.
3. The HSE accepts that there has been a delay filling these positions on a permanent basis but that delay does not provide a basis to ignore the standard rules applicable in the public sector.
RECOMMENDATION:
The Court has given careful consideration to the written and oral submissions of the parties.
The matter before the Court concerns five individuals who have been assigned or appointed on a temporary basis to roles at a higher grade than their basic grade since 2011 in the case of two individuals, since 2012 in the case of one individual and since 2013 in the case of two individuals.
The Trade Union contends that the five should be appointed permanently to the grade they currently occupy on a temporary basis while the HSE contend that in accordance with its own circular issued in January 2018 (01/2018) an open competition should be held to fill relevant positions and that the claimants should participate in those competitions.
The Court notes that an agreement was reached between the parties in 2013 which provided that the practice of staff ‘acting up’ in positions higher than their basic grade would cease. The HSE, in a guidance document to circular 17/2013 which gave effect to that agreement, clarified that following the agreement reached in 2013 temporary appointments extending beyond 12 months in duration ‘should only be on an exceptional basis as they would run counter to the concept of temporary appointments’.
The Court has not been advised of the existence of any exceptional basis for the continuing issuance to them of documents / contracts assigning or appointing the claimants to higher grade posts on a temporary basis each 12 months annually since that date. The Court notes that in any event there were acknowledged ‘gap’ periods where the claimants were operating at the higher grade and being paid to do so without being in receipt of any contract / document detailing the basis for their continuing temporary assignment / appointment.
In all of the circumstances the Court can only conclude that the appointment of the Claimants for periods beyond 12 months after the coming into being of circular 17/2013 was not in accordance with the agreements then in place or with the terms of that circular in particular.
The Court therefore cannot support the proposition that the Claimants, having been retained on temporary assignment / appointment to grades higher than their basic grade for periods of up to seven years and, since 2013, outside of the terms of circular 17/2013, should now be subject to competition in order to retain the grade they have occupied for periods of between approximately five and seven years.
The Court accepts that there is no arrangement in place for the appointment of persons to higher grades other than as a result of the holding an open competition. The Court notes also however that there is no arrangement in place for the assignment / appointment of a person to a temporary position for a period of greater than 12 months in the absence of an exceptional basis for doing so.
The Court notes the HSE concern that many others may be in a position analogous to the Claimants. The Court has been provided with no detail as regards that matter and in particular neither party supplied the Court with any basis for understanding what, if any, wider context might be attached to the issue of staff retained in temporary appointments / assignments for almost five years or more. The Court has established that the parties have not engaged on this matter on a national basis either at the Health Service National Joint Council or otherwise in a manner which would comprehend the detail of any implications arising. The Court further established that the parties were satisfied that the matter before the Court involving the five Claimants should be dealt with on its merits by the Court.
In all of the circumstances therefore, the Court recommends, having regard to their specific circumstances and the longevity of their temporary appointment and the absence of any exceptional basis for those appointments / assignments extending beyond 12 months, that the Claimants should be appointed to a permanent position at the grade they have temporarily held since, at minimum, 2013. Those appointments should take effect from the date of acceptance of this Recommendation. This Recommendation reflects only the specific circumstances of the five individuals before the Court and should not be taken to have a wider implication.
Signed on behalf of the Labour Court
Kevin Foley
LS______________________
13 August 2018Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.