Labour Court Database __________________________________________________________________________________ File Number: CD9527 Case Number: LCR14888 Section / Act: S26(1) Parties: SOUTHERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Compensation in respect of a lost opportunity to compete for promotion.
Recommendation:
The Court has considered all of the views expressed by the parties
in their oral and written submissions.
Given all of the circumstances the Court does not find that
grounds have been put forward to warrant the payment of
compensation to the claimant.
Accordingly the Court does not recommend concession of the claim.
Division: Mr McGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD9527 RECOMMENDATION NO. LCR14888
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES:
SOUTHERN HEALTH BOARD
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Compensation in respect of a lost opportunity to compete for
promotion.
BACKGROUND:
2. 1. The dispute concerns a worker who commenced employment
with the Board as a nurse in 1973. She was promoted to
the post of acting Deputy Ward Sister in May, 1986 and
continued to work in this post until 1987 when she was
granted leave of absence to take a career break and work
for the Health Services in Australia. She returned to
the Board's employment on 4th January, 1993 as a staff
nurse.
2. In June, 1988, the Board held a confined competition for
posts as nursing officer and deputy nursing officer.
Nurses who had been acting in higher grade posts were
allowed to compete in this once off competition. The
worker concerned was not notified and, therefore, was
unable to apply for these posts. The unsuccessful
candidates reverted to their substantive posts and were
paid 90% of the difference between the maximum salary of
the substantive post and the maximum of the next
promotional post. The Union claims that the worker
concerned is entitled to this allowance. Management
rejected the claim.
3. The dispute was referred to the Labour Relations
Commission and a conciliation conference was held on the
10th May, 1994. Agreement was not possible and the
dispute was referred to the Labour Court on the 16th
January, 1995 (the earliest date suitable to the
parties). The Court investigated the dispute in Cork on
the 16th August, 1995.
UNION'S ARGUMENTS:
3. 1. During the worker's leave of absence the Board did not
indicate to her that she would not be returning to her
post of acting Deputy Ward Sister. In 1990, the Board,
in a letter to the worker, referred to her post as that
of acting Deputy Ward Sister. It was reasonable for her
to expect to return to her acting post. Some nurses
have worked in 'acting up' posts for up to fifteen
years.
2. By not informing the worker of the confined competition,
the Board deprived the worker of her opportunity to be
appointed to the post permanently or be awarded the 90%
allowance.
3. The worker has suffered substantial financial losses
since her return to work in January, 1993 and will
suffer this loss for the remainder of her working life.
(Details supplied to the Court).
4. The worker is the only employee of the Southern Health
Board who has suffered the loss of the 90% allowance and
this through no fault of her own. Concession of her
claim would not influence the claims of any other
employee of the Board.
BOARD'S ARGUMENTS:
4. 1. The Board is satisfied that the worker was fully aware
of the developments which were taking place in the
psychiatric service before she went on a career break.
She would have been aware of the initial notice of the
confined competition which was posted to all notice
boards early in 1987 informing staff of the position and
should have arranged to make application at that time.
It is reasonable to expect that she would keep in touch
with her Union representative or colleagues about this
matter.
2. It is reasonable to assume that the worker would not
have returned from Australia to Ireland in June, 1988 to
attend for interview at the confined competition or that
she would have taken up the post had she been
successful. The fact that she applied for a two year
extension to her career break in 1990 indicated that she
would not have returned in June, 1988.
RECOMMENDATION:
The Court has considered all of the views expressed by the parties
in their oral and written submissions.
Given all of the circumstances the Court does not find that
grounds have been put forward to warrant the payment of
compensation to the claimant.
Accordingly the Court does not recommend concession of the claim.
~
Signed on behalf of the Labour Court
7th September, 1995 Tom McGrath
T.O'D./D.T. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Tom O'Dea, Court Secretary.