Labour Court Database __________________________________________________________________________________ File Number: CD9137 Case Number: AD91109 Section / Act: S13(9) Parties: EASTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
An appeal against Rights Commissioner's Recommendation ST300/90 regarding the failure to appoint a worker, who was in an acting position as a Grade II cook, to the permanent position.
Recommendation:
5. Having heard the submissions of the parties the Court accepts
the Board's contention that the Rights Commissioner was wrong to
state that the claimant was disbarred "on a technicality" when in
fact her job application was patently out of date. The Court
also accepts that it was inappropriate for the Rights Commissioner
to advert to the worker's status as a widow when making his
recommendation.
It is clear that the appointments procedure was not breached in
any way in the filling of the position. Nevertheless having
regard to all of the circumstances and to the peculiar chain of
events which may have led the claimant to misconstrue the eventual
outcome, the Court considers that the Board should make an
ex-gratia payment of #200 to the worker to finally resolve the
issue.
The Court so decides.
Division: CHAIRMAN Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD9137 DECISION NO AD10991
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACTS 1969
PARTIES: EASTERN HEALTH BOARD
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
An appeal against Rights Commissioner's Recommendation ST300/90
regarding the failure to appoint a worker, who was in an acting
position as a Grade II cook, to the permanent position.
BACKGROUND:
2. 1. The worker was employed as a domestic at St. Colman's
Hospital, on 21st July, 1980. In 1986 a vacancy arose in the
Hospitals catering department for a Cook Grade II. As the
most senior suitable domestic, the worker was appointed to
the post in an acting capacity on a temporary basis from 14th
April, 1986. The worker acted in the position until April,
1990 when a person was appointed from an open competition at
which the worker was unsuccessful. A previous competition
for the post was held in 1987 at which the interview board
could not recommend any candidate as being suitable. The
worker was not interviewed for the post at that time as her
application was received too late for inclusion. Some
confusion arose at the time as to why the worker was excluded
from the competition as she also received a letter from the
Board informing her that she was ineligible because she had
no experience of catering for a large number of people. The
worker claims not to have received a second letter regarding
her late application.
2. The Union sought redress in the circumstances of the
worker being passed over for promotion. The dispute was
referred to a Rights Commissioner and the Recommendation
ST300/90 as set out below was issued on 12th December, 1990.
"I am not satisfied with some of the grounds offered by
the Board for their refusal to appoint the claimant in
1987. There was no suitable candidate, she was
performing the duties for over a year and on a
technicality she was debarred. She continued to perform
the duties for the next three years satisfactorily. She
must now stand down with a loss of status. As a widow
she must in addition endure a loss of nearly #10 per
week.
I cannot interfere with the Board's statutory system of
appointments I can and will attempt to ameliorate the
loss to a quite innocent party who is the victim of the
vagaries of such a system.
I therefore recommend that the claimant receives #400
compensation based on the particular circumstances of
this case particularly those present in 1987."
3. On 9th January, 1991 the Recommendation was appealed by
letter to the Labour Court by the Eastern Health Board under
Section 13(9) of the Industrial Relations Act 1969. A Labour
Court investigation took place in Arklow on 26th November,
1991 (the earliest suitable date).
BOARD'S ARGUMENTS
3. 1. When a vacancy arises in any area of the Board's
operations, it may fill the post in an acting capacity. This
arrangement is of a temporary nature pending the filling of
the post on a permanent basis. The permanent filling of a
post is subject to the recommendation of an independent
interview board. The post of Cook Grade II is graded as an
officer post. The procedures for the selection of permanent
officers of Health Boards are determined by the Minister of
Health and are set out in Section 3 of the Department of
Health letter dated 29th March 1971. The Rights Commissioner
states in his background that "the claimant should be placed
in the post on practical merit or received compensation".
The Minister's procedures do not allow for the filling of the
post on practical merit. The Board is not in a position to
make permanent appointments without abiding by the
procedures. As the acting arrangement is only on a temporary
basis, the matter of payment of compensation does not arise.
3. 2. The Rights Commissioner in his recommendation referred
to the fact that the worker was a widow and "must in addition
endure a loss of nearly #10 per week". The Board is an equal
opportunities employer and access to employment complies with
Employment Equality legislation. The Rights Commissioner
also referred to the 1987 competition and stated that the
worker was debarred on a technicality. The worker submitted
her application form 9 days after the closing date for the
competition. Practically all employers use closing dates for
competitions. If closing dates are ignored or regarded as a
technicality, there is no point in having them in the first
place. Taking this into account, the Board should not have
to make a compensatory payment as a result of the worker
submitting an application form after the closing date.
3. 3. The worker was not allowed to compete in the 1987
competition as she submitted her application too late to be
considered. In error the Board first sent a letter informing
her she had not got the requisite experience. This letter
was issued in error by the official who had not realised the
application was late and noted that the worker had no details
of experience on the application form. The late application
was detected but unfortunately the first letter issued in
error.
UNION'S ARGUMENTS:
4. 1. The Board stated at the Rights Commissioner's
investigation that the reason why the worker was not
appointed to a permanent position was due to the fact that
her application was received too late yet, a letter to the
worker of 27th February 1987 gave the reason for her
non-appointment as not having the relevant qualifications.
The worker clearly demonstrated her qualifications and
experience. This is obvious by the fact that she performed
all of the duties required of the position and the Board left
her in that position for over 4 years.
4. 2. The worker received no communication from the Health
Board regarding her late application in 1987. The worker
received her application form from the then administrator of
the Hospital. With the assistance of another officer, the
worker completed and posted the application from on the same
day. It is reasonable therefore to assume that having posted
the application on the same day as receiving it from the then
administrator that she was either within the time frame or
that the closing date was not being rigidly adhered to by the
Board.
4. 3. Having performed the duties of Grade II cook for over 4
years, the worker was then not appointed and deemed
unsuitable for the position. In her first rejection of 1987
she was initially told that she was not qualified and then
that her application was too late. The Union feels she was
treated in an unfair manner resulting in distress being
inflicted on her by her employer. The worker is seeking the
minimal compensation awarded by the Rights Commissioner.
RECOMMENDATION:
5. Having heard the submissions of the parties the Court accepts
the Board's contention that the Rights Commissioner was wrong to
state that the claimant was disbarred "on a technicality" when in
fact her job application was patently out of date. The Court
also accepts that it was inappropriate for the Rights Commissioner
to advert to the worker's status as a widow when making his
recommendation.
It is clear that the appointments procedure was not breached in
any way in the filling of the position. Nevertheless having
regard to all of the circumstances and to the peculiar chain of
events which may have led the claimant to misconstrue the eventual
outcome, the Court considers that the Board should make an
ex-gratia payment of #200 to the worker to finally resolve the
issue.
The Court so decides.
~
Signed on behalf of the Labour Court
16th December, 1991 Kevin Heffernan
J.F./N.M. -----------------
Chairman