ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00013150
Parties:
| Complainant | Respondent |
Anonymised Parties | A Nurse Manager | Health Service Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016781-001 | 12/01/2018 |
Date of Adjudication Hearing: 29/08/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The union set out a chronology of the claimant’s career history to date and the extent of her post graduate educational achievements. The claimant commenced acting as temporary Director of Nursing with the respondent on the 1st.July 2013. The claimant had sought to have her post regularised since November 2017 but was advised that she did not meet the criteria for regularisation owing to time frames. It was submitted that by expecting the claimant to act in a post for a period in excess of 12 months, the respondent was in breach of Circular 17/2013 where it was held that temporary appointments extending beyond 12 months should only arise on an exceptional basis. In the instant case the claimant was now acting in her promotional post for over 5 years. It was submitted that had the claimant been assigned a fixed term contract she would have acquired rights to a contract of indefinite duration over a year ago. It was submitted that regularisation of the claimant’s position would be cost neutral as she had progressed up the incremental scale. The union sought the payment of €5,000 compensation for the respondent’s failure to adhere to the provisions of their own circular on temporary appointments. |
Summary of Respondent’s Case:
The respondent did not dispute any of the submissions made by the union on behalf of the claimant and could offer no plausible explanation as to why the post remained unfilled for such a prolonged period. It was submitted that the claimant did not meet the criteria for regularisation as she did not have 2 years continuous service on the 31.12.12. The employer had now completed all of the paperwork to proceed to fill a number of Director of Nursing posts – a competition has commenced and the claimant is eligible to apply. It was accepted that the claimant’s service has been exemplary at all times and that her commitment and professionalism had been outstanding. |
Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have reviewed the evidence presented at the hearing and I accept the union’s contention that the respondent was in breach of the principles regarding temporary appointments set out in circular 17/2013. I note that no explanation could be advanced for the delay in filling the post. I further accept the union’s contention that the claimant would have acquired rights to a CID if she had been engaged on a fixed term contract.
In all of the circumstances, I am recommending in full and final settlement of this dispute that the claimant be regularised as a permanent Director of Nursing with immediate effect and that she be paid a compensatory sum of €3,000 for the respondent’s tardiness in filling the substantive post. This recommendation is based on the unique circumstances of this dispute and should not be invoked or relied upon in any other forum. |
Dated: 07/09/18
Workplace Relations Commission Adjudication Officer: Emer O'Shea