Labour Court Database __________________________________________________________________________________ File Number: CD91646 Case Number: AD92126 Section / Act: S13(9) Parties: EASTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
An appeal against Rights Commissioner's Recommendation BC329/91 regarding the status of a worker.
Recommendation:
5. Having considered the submissions made by the parties, the
Court does not find grounds to uphold the Board's appeal.
The Court so decides.
Division: Mr Heffernan Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD91646 APPEAL DECISION NO. AD12692
THE LABOUR COURT
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: EASTERN HEALTH BOARD
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. An appeal against Rights Commissioner's Recommendation
BC329/91 regarding the status of a worker.
BACKGROUND:
2. 1. The worker was on a panel for relief vacancies in the
ambulance/transport service of the Board from October, 1988 to
May, 1990 when the worker was assigned to Athy ambulance base
The worker refused the assignment. In November, 1990, the
worker lodged a claim under the Minimum Notice and Terms of
Employment Act, 1973 and the Unfair Dismissals Act, 1977. The
claims were due to be heard before the Employment Appeals
Tribunal (EAT) on 18th February, 1991. The hearing was
adjourned as discussions took place between both sides to the
dispute.
2. As a result of the discussions the worker was offered a
position as mini-bus driver on a new service based at St.
Columcille's Hospital. The worker commenced working on the
mini-bus on 19th February, 1991. In May, 1991, the Board
advertised for long-term mini-bus drivers. Special
arrangements were made for the worker to compete but his
application was unsuccessful. On 16th August, 1991, the
worker's employment with the Board was terminated. Earlier,
on 19th June, 1991, the adjourned hearing of the Employment
Appeals Tribunal (EAT) took place. It was decided that the
worker could not make a claim under the Unfair Dismissals Act.
3. On termination of his employment with the Board, the
worker began picketing Loughlinstown ambulance base. The
worker made repeated claims that he had been offered a full
time position as mini-bus driver at the adjourned Employment
Appeals Tribunal hearing on 18th February, 1991. The Board
denied the claim and the dispute was referred to a Rights
Commissioner. Both sides agreed to be bound by the
recommendation. The Rights Commissioner investigated the
claim on 6th September, 1991 and the recommendation BC329/91
as set out below was issued on 17th September, 1991.
"In the light of the above I must hold that the claim by
the Trade Union concerning the worker should succeed.
I therefore, recommend that the worker be appointed to
the mini-bus driving job, on a permanent basis, at
Loughlinstown Hospital. This appointment should be
made without delay.
With regard to the status of my recommendation I note
that the Trade Union has stressed that it is committed
to accepting it as binding. I also note that in the
event of the worker abandoning all other proceedings
against the Health Board it too will accept my
recommendation."
The worker was named in the recommendation.
4. The Union accepted the recommendation but the Board were
unable to accept that the worker would as a result of the
recommendation be entitled to be second in line to fill relief
ambulance driver vacancies. The Board claimed that the Union
was seeking more favourable terms than those of the Board's
other mini-bus drivers and that the claim was outside the
terms of the recommendation.
5. A further Rights Commissioner's hearing was held on 25th
October, 1991 and the Rights Commissioner's recommendation
also numbered BC329/91 as set out below was issued on 11th
November, 1991.
"Having investigated the matter and having given
full and careful consideration to the points made
by both parties I have come to the following
conclusions:-
1. I note that the statement was made on behalf
of the James's Street mini-bus drivers that
there would be no objection to the worker
retaining his position as second relief after
another named worker.
2. I also note that the worker understood himself
to have been given a commitment some time ago
which would seem to confirm his position as
second relief ambulance driver.
In the light of the above I recommend that the
claim by the Trade Union should be upheld.
The workers were named in the Recommendation.
6. The Board by letter dated 3rd December, 1991 appealed
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 January, 1991
UNION ARGUMENTS:
3. 1. The reason the worker's claim for unfair dismissal did
not go ahead at the Employment Appeals Tribunal was clearly
because some promise or commitment had been given to the
worker regarding his future employment with the Board. At the
time there was some discussion as to why the worker would be
second in line for relief ambulance work at the base (details
supplied). The post of mini-bus driver was a new position and
no difficulties would arise (details supplied).
2. Both sides attended the Rights Commissioner's hearing on
the understanding that the recommendation would be binding on
both parties. The recommendation of 17th September, 1991 was
accepted by the Union. The Board, however, insisted that the
worker would only be given relief ambulance driving duties on
a seniority basis and thus rejected the recommendation. This
was unacceptable as the worker had been give a commitment on
18th February, 1991, firstly regarding the mini-bus driver
post and secondly regarding his position as second relief
ambulance driver.
3. A further Rights Commissioner's recommendation which was
issued on 25th October, 1991, found in favour of the worker.
At this stage the Board is appealing an already clarified
recommendation which they had agreed to accept as binding.
the Union has given a commitment that this case would not be
used as a precedent and would have no bearing on the general
guidelines for relief work on the ambulance panels. The Union
is not aware of any union which objects to the outcome of the
case.
BOARD ARGUMENTS:
4. 1. As at the Rights Commissioner's hearings the Board
remains satisfied that the worker was not offered a permanent
job on 18th February, 1991. Notwithstanding this contention,
the Board has agreed to be bound by the outcome of the Rights
Commissioner's investigation. The Board undertook to
implement the recommendation in full although it was
unfavourable to their case. The worker, in an unprecedented
action, was appointed to the post of permanent mini-bus driver
without competition. The worker was appointed on the same
terms and conditions as other mini-bus drivers. If the Board
was to implement the terms of the recommendation of 27th
October, 1991, the worker would be placed in a more senior and
privileged position than existing workers.
2. The Board is satisfied that the workers understanding of
the relief situation as outlined on 18th February, 1991 is
mistaken. The Board is concerned that the Rights Commissioner
may have misunderstood the situation regarding relief
ambulance work. The worker never held the position of second
relief and so he could not be seeking to retain it. It is
therefore not an alteration of his conditions not to allow him
be second relief. The Board has letters of objection to the
recommendation from workers. These objections are an
indication of the irregular nature of the arrangement in the
recommendation of 25th October, 1991.
3. The Rights Commissioner's recommendation of 17th
September, 1991 regarding the worker's claim for a permanent
mini-bus driving job has been accepted and implemented in full
by the Board. The issue of second relief was not dealt with
by this Recommendation and is effectively a new claim. The
Rights Commissioner was incorrect in the recommendation of
25th October, 1991 when he stated that the dispute concerned
the implementation of his earlier recommendation. This
recommendation had been implemented in full by the Board.
RECOMMENDATION:
5. Having considered the submissions made by the parties, the
Court does not find grounds to uphold the Board's appeal.
The Court so decides.
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Signed on behalf of the Labour Court
Kevin Heffernan
27th January, 1992 ----------------
J.F./U.S. Chairman