Labour Court Database __________________________________________________________________________________ File Number: CD91144 Case Number: AD9195 Section / Act: S13(9) Parties: MIDLAND HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
An appeal against Rights Commissioner's Recommendation No. ST361/90.
Recommendation:
5. Having considered all the evidence presented by the parties,
the Court is satisfied that the purpose of the confined
competition held in 1988 for permanent promotional positions was
to fill such vacancies as existed at that time having due regard
to the ward closures which were to take place by the end of that
year. The competition was the outcome of the Forum agreement
which was specific that all subsequent vacancies for permanent
promotional positions would be filled on an open competition
basis.
Accordingly, the Court does not consider that the 1988 confined
competition has any relevance for such vacancies. In the
circumstance, the Court finds the Health Boards appeal case to be
well grounded and therefore upholds it.
The Court so decides.
Division: CHAIRMAN Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD91144 DECISION NO. AD9591
THE LABOUR COURT
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: MIDLAND HEALTH BOARD
LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. An appeal against Rights Commissioner's Recommendation No.
ST361/90.
BACKGROUND:
2. 1. The claim is on behalf of a staff nurse at St. Fintans
Hospital, Portlaoise, who is seeking appointment without
competition to a deputy nursing officer's post at the Hospital.
The post to which the worker aspired became vacant on the 4th
February, 1990. The Board have rejected the claim on the basis
that all supervisory nursing posts have been filled by open
competition since 1988 in accordance with the agreement known as
the forum between the Unions representing the psychiatric nurses
and the Local Government Staff Negotiations Board.
2. The dispute was the subject of a Rights Commissioner's
investigation on 25th January, 1991 and the Rights Commissioner's
recommendation was issued on 18th February, 1991.
"I therefore recommend that the Union's claim be accepted by
the Board on the basis of the safeguards offered at the
investigation in full and final settlement of the claim".
3. The Board by letter dated 1st March, 1991, appealed against
the Rights Commissioner's recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. A Labour
Court investigation took place on 15th October, 1991 in Tullamore
(earliest date suitable to both parties).
UNION ARGUMENTS:
3. 1. The worker, in June, 1988, competed in a confined
competition for promotion to deputy nursing officer. From the
competition, a panel was established from which both permanent
and temporary appointments were made (details supplied). The
worker on 3rd October, 1988, was offered and accepted a
temporary position as deputy nursing officer. The ward to
which he was appointed closed at the end of 1988, at which
time the worker reverted to his previous grade.
2. The Board have conceded that if a permanent position had
arisen prior to 31st December, 1988 the worker would have been
promoted. The Board however used an arbitrary cut off date
for the worker once it became clear that he was entitled to a
permanent promotion. The Board in its arguments have used
LCR12980 in an effort to suggest that the worker's promotion
would create inter union rivalry. This position is
unsustainable in the light of a letter from the other Union at
the hospital (details supplied). The worker's colleagues who
acted in temporary promotional positions were promoted to
permanent positions.
BOARD ARGUMENTS:
4. 1. The worker is seeking to be appointed without
competition, to a deputy nursing officer's post. This is
contrary to the Forum agreement which was agreed with the
psychiatric nursing unions in May 1988. As part of the
agreement, recruitment to supervisory nursing posts is by open
competition. It was also agreed that a "once off" confined
competition would be held in every psychiatric hospital in
June 1988 to fill all the then existing vacancies at nursing
supervisory level. The worker was not successful in securing
an appointment from that competition. No panel was created
from the competition for future permanent appointments but
some temporary appointments were made from the ranking order.
2. If the Rights Commissioner's recommendation were to be
implemented, it would result in the Board having to continue
making permanent appointments to supervisory nursing posts
from the "once off" confined competition of 3 years ago. This
would be at variance with what was agreed with the psychiatric
nursing unions and would leave other hospital/health board
managements open to similar claims.
3. If the Board were to fill any supervisory posts other
than through open recruitment, it is likely to result in
individual nurses taking cases under the Employment Equality
Act, 1977 alleging discrimination on grounds of denial of
access to compete for these posts. Assurances were given in
1988 to the Employment Equality Agency that the confined
competition was purely a transitional measure. A similar case
involving the Union and the Southern Health Board (LCR12980
was rejected by the Court.
RECOMMENDATION:
5. Having considered all the evidence presented by the parties,
the Court is satisfied that the purpose of the confined
competition held in 1988 for permanent promotional positions was
to fill such vacancies as existed at that time having due regard
to the ward closures which were to take place by the end of that
year. The competition was the outcome of the Forum agreement
which was specific that all subsequent vacancies for permanent
promotional positions would be filled on an open competition
basis.
Accordingly, the Court does not consider that the 1988 confined
competition has any relevance for such vacancies. In the
circumstance, the Court finds the Health Boards appeal case to be
well grounded and therefore upholds it.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
11th November, 1991 ---------------
J.F./U.S. Chairman