Labour Court Database __________________________________________________________________________________ File Number: CD93236 Case Number: AD9337 Section / Act: S13(9) Parties: ST JAMES'S HOSPITAL - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. C.W. 467/92.
Recommendation:
5. The Court has considered the submissions made by the parties.
It has come to the conclusion that normal staffing procedures do
not allow for transfers of staff such as is being requested by the
worker concerned. The Court therefore upholds the hospital's
appeal but recommends that on the next occasion that a vacancy in
the Physiotherapy Department is open for competition, full account
should be taken of the worker's long previous service in the
department.
Division: Mr O'Connell Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD93236 APPEAL DECISION NO. AD3793
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: ST JAMES'S HOSPITAL
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. C.W.
467/92.
BACKGROUND:
2. The dispute concerns one worker who was employed as a Hospital
Attendant (assigned to the wards), in May, 1975. She was
subsequently successful in a competition for the post of Attendant
(assigned to the Physiotherapy Department), and took up duty on
the 1st of November, 1977.
In May, 1991, the Union sought a transfer to lighter duties for
the worker, due to her recurrent back problems. The Hospital did
not accede to the request, but advised that the worker should
apply for the position of Hospital Sterile Supplies Unit
(H.S.S.U.) Operative. This position did not involve the lifting
of patients. The worker was successful in her application and
commenced work in the H.S.S.U. Department on the 16th of December,
1991.
On the 23rd of August, 1992 the Union sought a transfer for the
worker from the H.S.S.U. Department, on the grounds that,
following successful treatment, her back problems had cleared.
The Hospital did not accede to the Union's request and the Union
referred the matter to a Rights Commissioner for investigation.
On the 22nd of February, 1993, the Rights Commissioner recommended
that the Hospital accede to the Union's request, subject to (i)
occupational health clearance, (ii) a review clause in the event
of a recurrence of the problem, (iii) a probationary period purely
for capability assessment.
The Hospital appealed against the Rights Commissioner's
recommendation on the 31st of March, 1993. The Court investigated
the appeal on the 30th of April, 1993.
UNION'S ARGUMENTS:
3. 1. The worker's request for transfer from the Physiotherapy
Department was as a direct result of her back problems. These
problems have since cleared.
2. The worker will willingly comply with the conditions laid
down by the Rights Commissioner, on her re-deployment to the
Physiotherapy Department.
3. The original position vacated by the worker is still
vacant.
4. The Union is prepared to give a commitment that the
worker's transfer will not set a precedent affecting selection
procedures for other workers.
HOSPITAL'S ARGUMENTS:
4. 1. The assignment of the worker to the H.S.S.U. department
cannot be viewed as a "temporary facility". The post of
Physiotherapy Attendant is seen as having more favourable
working conditions by the attendants on the wards. Under
normal selection procedures the position is competed for.
2. The Hospital has facilitated the worker in the past to the
best of its ability, through normal procedures.
3. If the Rights Commissioner's recommendation is upheld, the
Hospital's right to decide on the appropriateness of
assignments in accordance with the exigencies of the service,
following normal consultation and selection procedures agreed
with the Union, will be undermined. The erosion of this
fundamental principle could have serious repercussive effects
for the hospital in the future.
DECISION:
5. The Court has considered the submissions made by the parties.
It has come to the conclusion that normal staffing procedures do
not allow for transfers of staff such as is being requested by the
worker concerned. The Court therefore upholds the hospital's
appeal but recommends that on the next occasion that a vacancy in
the Physiotherapy Department is open for competition, full account
should be taken of the worker's long previous service in the
department.
~
Signed on behalf of the Labour Court
John O'Connell
__________________
7th May, 1993. Deputy Chairman
M.K./J.C.