Labour Court Database __________________________________________________________________________________ File Number: CD93109 Case Number: AD9321 Section / Act: S13(9) Parties: OUR LADY'S HOSPITAL FOR SICK CHILDREN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. BC462/92 regarding upgrading of a worker.
Recommendation:
5. The Court has considered the submissions made by the parties.
It takes the view that the holding of the appropriate
qualification does not automatically entitle an individual to
promotion and further that the hospital is entitled to satisfy
itself as to the suitability of persons it recommends for
promotion. In the circumstances the Hospital' offer of a review
of the worker's performance at the end of April is reasonable.
The Court therefore upholds the Hospital's appeal against the
Recommendation of the Rights Commissioner.
The Court so decides.
Division: Mr O'Connell Mr Brennan Mr O'Murchu
Text of Document__________________________________________________________________
CD93109 APPEAL DECISION NO. AD2193
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: OUR LADY'S HOSPITAL FOR SICK CHILDREN
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
BC462/92 regarding upgrading of a worker.
BACKGROUND:
2. The worker concerned was employed by the Hospital in 1984 as a
nurse's aide. In 1988 she was promoted to the position of porter
in the pathology department. In early 1991 the worker concerned
qualified as a pathology technician and subsequently sought
upgrading to the position of pathology technician.
In February, 1992, a meeting took place between the parties at
which the upgrading to technician and a number of work-related
problems relating to the worker concerned were discussed.
Following the meeting, the Federation of Irish Employers, on
behalf of the Hospital, confirmed the following:
(1) Job description and reporting relationship were agreed.
All elements of the job were to be performed.
(2) The Hospital's concerns re attendance were highlighted.
An immediate and sustained improvement was required.
(3) The parties were to review the position in September,
1992, and a decision was to be made then on supporting
the upgrading of the worker concerned to mortuary
technician grade, subject to approval by the Department
of Health.
In October, 1992 a review of the worker's position took place.
The Hospital's position was that the required improvement had not
taken place and it proposed to defer any decision on the upgrading
for a further six months. The Union rejected the Hospital's
proposals.
The Union referred the matter to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner on 22nd
January, 1993 recommended as follows:
"Taking the above into account it is my conviction that it
would be equitable for the Hospital to approach the
Department of Health to have the worker's job upgraded
effective from 1/1/93".
The worker's name was mentioned in the Recommendation.
The Rights Commissioner's Recommendation was appealed to the
Labour Court on 22nd January, 1993. The Labour Court heard the
appeal on 4th March, 1993.
UNION'S ARGUMENTS:
3. 1. It is accepted by management and by the parents of
patients who have written to the Hospital that the worker
concerned is a diligent worker and is excellent at dealing
with patients under difficult circumstances.
2. The attendance of the worker concerned was affected by
serious personal and family matters of which management was
kept fully informed.
3. An agreement reached in February, 1992 provided for the
Hospital supporting the upgrading of the worker in September,
1992.
4. The Hospital in its submission to the Rights Commissioner
accepted that the worker's attendance had improved.
5. The worker has no difficulties in performing all duties
relating to her position as porter in the pathology
department.
HOSPITAL'S ARGUMENTS:
4. 1. Management accepts that the worker's claim has merit but
that her attitude and attendance render any upgrading
impossible until a sustained and acceptable improvement is
forthcoming.
2. No obligation can be attached to the Hospital to promote
its staff on completion of exams.
3. The Hospital reserves the right to recruit and promote
suitable staff.
4. The worker already has a guarantee that if her attendance
and performance improve the Hospital will apply to the
Department of Health for her upgrading.
DECISION:
5. The Court has considered the submissions made by the parties.
It takes the view that the holding of the appropriate
qualification does not automatically entitle an individual to
promotion and further that the hospital is entitled to satisfy
itself as to the suitability of persons it recommends for
promotion. In the circumstances the Hospital' offer of a review
of the worker's performance at the end of April is reasonable.
The Court therefore upholds the Hospital's appeal against the
Recommendation of the Rights Commissioner.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_____________________
7th April, 1993. Deputy Chairman
F.B./J.C.