ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00021735
Two Addiction Counsellors
Health care providers
Forsa Trade Union
Respondent’s HR Executives
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 22/07/2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 13 of the Industrial Relations Acts 1969] following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint disputes.
This dispute concerns two workers Mr A and Ms B who work in the respondent’s recently amalgamated substance abuse and alcohol treatment centre. The workers are seeking a recommendation to be confirmed as permanent in the grade they have occupied since 2013 without the need to undergo a competitive process for same.
Summary of Complainant’s Case:
Both claimants have filled a permanent and fixed need for the organisation for nearly 6 years on an uninterrupted and specific purpose contract basis. They seek confirmation of permanency in these posts. They object to the advertisement of these posts.
Mr A held the role of counsellor in a permanent capacity. In late 2013 he was assigned to fill the role of Manager /Senior Counsellor. He fulfilled the role for almost 6 years. He only got a contract in June 2019 as he held a permanent post already. He was replacing a person on a career break which has lasted for 6 years and not 3.
Regarding the respondent’s argument that Mr S resiled from an agreement, Mr S states that he withdrew from the agreement because of his understanding that he would be competing for the job he currently holds - that of Manager /Senior Counsellor of the residential treatment centre and not the Senior Counsellor post which is a different job to the one he now occupies; the role he currently occupies incorporates a managerial function. He manages the service which has 20 counsellors and 13 residential care workers.
Mr A is aware of other employees in similar circumstances getting permanent positions. The same salary applies to the two positions.
Ms B is employed in the now- amalgamated residential treatment centre as a Senior Counsellor. She got repeated contracts every 6 months though sometimes there were gaps between one contract and the next. She was filling a permanent job made vacant through a retirement.
The employer has failed to observe their own guidelines in relation to these two employees which recommend that specified purpose contracts are supposed to be related to a specific timebound need. The workers however have been issued with contracts of varying durations with no apparent rationale. The employer’s own circular (18/2016) states that 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 claimants argue that there are no exceptional circumstances for the continuing use of temporary appointments in this case and the employer is clearly in breach of their own guidelines. The union refers to LCR21771 in support of their claim which recommended permanency for two other of the respondent’s employees in a similar position to the claimants in the instant case.
The workers argue that The Protection of Employees (Fixed-Term Work) Act, 2003 does have a bearing on this case because the Act implies that after four years a post cannot be defined as ‘temporary’. Without reference to the Act an employer could use temporary contracts indefinitely - The right of the two employees to request a contract of indefinite duration under the Act is legitimate as they have clearly filled a permanent vacancy. The employer has now proceeded to advertise these two posts albeit the process is suspended as the matter has been referred to WRC.
Both employees performed the duties and responsibilities of the posts despite the absence of a contract in Mr A’s case.
These workers have been carrying out the work of a higher grade on a ‘temporary’ basis since 2013, filling the clinical needs for the respondent. These are clearly not temporary positions as the roles have been in existence for many years and the employer had recently sought to advertise them externally therefore potentially displacing Mr A and Ms B. The work is continuing.
It is perverse that staff acting into higher roles have less right to permanency after more than 6 years than an individual hired on a Fixed Term Contract would have after 4 years.
The claimants ask that the adjudicator find in their favour.
Summary of Respondent’s Case:
The employer states that contrary to what the union asserts, there were exceptional circumstances dictating that the posts held by the workers should remain temporary. The employer could not advertise the posts in a permanent capacity.
The employer states that the Protection of Employment (Fixed -Term) Work Act, 2003 has no application because the two claimants are permanent employees albeit promoted temporarily into higher grades. The respondent cites FTD 20/2013 in support of this point.
Different circumstances apply to the two workers.
The union is resiling from an agreement reached with management in respect of Mr A. who agreed to compete for the position of Senior Counsellor.
The exceptional circumstances justifying their decision to maintain Mr A in a temporary position is that the permanent occupant of the post which Mr S. has filled since 2013 took a career break and the rules of the scheme prohibited an appointment being made on a specified purpose contract. In late 2018, approval was received to fill vacancy. Mr S occupied the role from 2013 in an acting capacity. An agreement was reached between the union and the employer to pay the claimant arrears for acting in the post and he agreed to compete for the vacancy but withdrew and submitted a compliant to the WRC. The original holder of the post Mr McK intends to return but is not necessarily seeking the post which he held in 2013 nor does he have an entitlement to return to the exact same role.
Ms B occupies the post of senior counsellor since late 2013 on a series of fixed term contracts.
The reason for this is that approval to fill the post was refused on a number of occasions by the parent department as the future of the governance structure of the unit was uncertain. This uncertainty has now been dispelled via the common governance structure for both units. A permanent appointment was ultimately approved in January 2019, a competitive process was launched and is now on hold. Ms B refuses to engage in a competitive process. The respondent accepts that the complainant was maintained in a temporary position for in excess of that provided in their circulars. The respondent relies on exceptional circumstances.
The exceptional circumstances are that the respondent can retain a person in a temporary appointment until a permanent appointment is made as per the respondent’s circular - C/l 17/2013. While approval to fill the post in a permanent capacity was withheld, it was always the intention to do so. The guidance document allows for temporary appointments to survive beyond 12 months where it is intended to fill the post in a permanent capacity.
The respondent is obliged to run competitive process for filling permanent posts.
Discussions are ongoing nationally about the transitioning of staff form acting up to permanent roles.
The respondent requests that their position be accepted.
Findings and Conclusions:
I cannot accept that the need for such a service is temporary. The provision of counselling services for people in need of medical care because of substance abuse is not a timebound need but is unfortunately an ongoing need.
I note that the employer is not stating that the former holder of the contested post is seeking to return to the post of Manager/ Senior Counsellor.
The exceptional reasons.
What was uncertain was the governance structure for the treatment facilities, not the service or the need to staff the service. I do not find this to be an exceptional or adequate reason to maintain an employee in uncertainty for 6 years. Approval to fill the post in a permanent capacity was delayed until January 2019.
The non- application of the Protection of Employees (Fixed- Term) Work Act,2003 was cited by the employer as to why the claimants’ request should be rejected. The claim for permanency was not wholly based on this. It hardly needs to be said that this dispute is referred under the Industrial Relations Act,1969 and the merits of the dispute must be considered within the confines of that Act and not according to the requirements of the Act of 2003.
The process of seeking to fill vacancies is hardly an exceptional circumstance in an organisation with such a huge workforce.
Approval to fill the post was signed off on 24 January 2019.
I am guided by the Labour Court Recommendation, LCR21771 which dealt with a comparable claim by 5 employees, appointed or assigned to higher grade roles for periods of 5- 7 years and seeking the same outcome as the in the instant case. The court noted
“that there were acknowledged gap periods where the complainants 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.” The court observed
“The court cannot accept the proposition that the claimants having been retained on temporary assignments / 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 5 and 7 years.”
The court accepted the standard process was for a public competition but went on to say that
“there is no arrangement in place for the assignment 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”
In the instant case, the respondent argued that the exceptional basis was uncertainty about the governance structure and delays in the approval and appointment process, but in an organisation the size of the respondent, with thousands of employees, it is difficult to accept that such hitches are other than commonplace. I do not find that they amount to exceptional circumstances.
The fact that the employer negotiated with the claimant outside of whatever national discussions might occur – and the employer made only a passing reference to them- indicates that they had the freedom to negotiate a deal separate from whatever might emerge nationally.
For the reasons cited above, I recommend that Mr A is confirmed in a permanent capacity as the Manager/ Senior Counsellor forthwith.
For the reasons cited above, I recommend that Ms B is confirmed forthwith as a permanent Senior Counsellor.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I find merit in the claimants’ request to be confirmed as permanent appointees in the roles they currently hold. I recommend that Mr S is confirmed forthwith as a permanent Manager/Senior Counsellor and that Ms B is confirmed forthwith as a permanent Senior Counsellor.
Dated: 5th December 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy