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“Acting Up Positions” – Recent Labour Court Case

We often receive queries from employees who are in “Acting Up” positions and looking to regularise that position and make it permanent.A recent case before the Labour arose dealt with such an issue.  The case of Health Service Executive and a Worker Decision No. LCR22227 concerned an appeal by the Claimant against the recommendation of an Adjudication Officer decision (ADJ-00021804) in a claim for regularisation of his post as Area Director of Nursing, which post the employee had held since February 2014. The HSE disputed the claim stating that the employee was employed as a permanent Assistant Director of Nursing and was engaged temporarily in the role of Area Director of Nursing due to the exceptional circumstances applying.In the Workplace Relations Commission, the Adjudication Officer had rejected the Claimant’s claim and upheld HSE’s position that there were exceptional circumstances for his temporary appointments. The Adjudication Officer recommended that a competition should be made available to the employee to apply for the role and the HSE should give him any assistance required to compete for the role. The Claimant appealed that Recommendation and disputed the existence of exceptional circumstances and claimed that he should be awarded permanency in the role of Area Director of Nursing.BackgroundIn this case the employee had been employed with the HSE since May 2003. Between 2005 and February 2014 he was employed as an Assistant Director of Nursing Practice Development in the Central Mental Hospital (CMH), Dundrum, Co. Dublin. In February 2014 he took up the position of Area Director of Nursing on an acting basis, based in the Central Mental Hospital in Dundrum. The previous holder of the position was moved from the CMH to the position of Senior Operations Manager, in the HSE Mental Health Division, St Loman’s Hospital, Lucan, Co Dublin.

The Worker has continued to fulfil this role until the date of the hearing. In early 2016 the package of allowances associated with the role were consolidated into his salary and as such his terms and conditions were now correct for the role of Area Director of Nursing, with exceptions in respect of (a) permanency in the role and (b) his pension entitlements reflect those of Assistant Director of Nursing Practice.

The employee and his union argued that it was agreed that only in exceptional circumstances should temporary assignments extend beyond 12 months and that no exceptional circumstances arose in this case. They relied upon HR Circular 001/2018 in this regard.

The HSE argued that the Worker’s temporary contract was exceptional in nature and necessary to cover a unique period of transition in Mental Health Services. They also argued that National Forensic Services cannot issue the Worker a permanent contract of employment for Area Director of Nursing, National Mental Health Services when the substantive post holder holds such a contract and has a legitimate expectation that he could resume this role when the transition in Forensic Services is complete. It also noted that the worker would not be disadvantaged in terms of pension entitlement.

Findings and Conclusion of the CourtThe Labour Court heard submissions from both parties and noted the following:(i) The Claimant has been in the role of Area Director of Nursing since February 2014 and HSE informed the Court that it cannot give a termination date for his temporary assignment, which at this stage is likely to continue until 2021 or 2022.ii.The Claimant’s substantive role as Assistant Director of Nursing in Practice Development was advertised as approved by HR/NRS in 2016 and filled on a permanent basis in 2018.iii.While it may have been an error to complete HR 102 Form in 2016 indicating a “Change to Employee Terms and Conditions” which stated that the reason for the contract change for the Claimant was “promotion”, he was not informed of that error and only became aware of HSE’s position on that form prior to taking this case.iv.The Court understands and accepts the Claimant’s contention that the reasons for the completion of HR 103 Forms on three occasions was connected, in part at least, to regularising his payroll, as the first form signed on 22nd July 2016 backdated his improved salary to 3rd February 2014, and the third from signed on 26th February 2020 followed enquiries he made on 21st February 2020 when his salary was amended to reflect a downgrade in his role, which was rectified on completion of the form.v.HSE HR Circular 17/2013 requires that temporary contracts for posts at a higher grade that extend beyond 12 months will only apply on an exceptional basis as it would run counter to the concept of temporary contracts.vi.In maintaining the Claimant on temporary contracts for posts at a higher grade, HSE did not seek the necessary prior sanction from the National HR for consideration and onward transmission, as appropriate, to the Department for written sanction, as required by HSE HR Circular 18/2016.The Court accepted that the transition of the National Forensic Mental Health Services to a new campus was a major undertaking which required specialist expertise however it noted that“the length of time the Claimant has been on temporary contracts, the continuous extensions of such contracts, the lack of compliance with the required approval coupled with the uncertainly surrounding the likely duration of his temporary status and the filling of his substantive role on a permanent basis, lead the Court to conclude that the Claimant has a genuine expectation that he would retain that grade on a permanent basis. Therefore, the Court is satisfied that the Claimant has a right to be regularised in his position as Area Director of Nursing, without the uncertainly of having to compete for such a position”The Court recommended that the Claimant should be regularised in the acting up role of Area Director of Nursing and that this should take effect from the date of acceptance of this Decision. 

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