FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EASTERN HEALTH BOARD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Mr Rorke |
1. Appeal of Rights Commissioner's Recommendation No. RC253/97 concerning promotion.
BACKGROUND:
2. The worker concerned commenced employment with the Board in August, 1975 as a staff nurse and was assigned to St. Brendan's Hospital. She was promoted to the position of deputy nursing officer in October, 1990.
The dispute before the Court concerns the worker's claim that she was given a clear understanding by senior nurse management that she would be appointed to a permanent nursing officer post but that the Eastern Health Board failed to appoint her to a vacant post from a panel established for the purpose of filling existing vacancies and vacancies arising during the lifetime of the panel.
Local level discussions failed to resolve the issue and the matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"The advertisement to which the claimant responded clearly stated that the panel was to have a 12 month existence. Furthermore, no evidence was produced to establish that this was out of line with the norm.
My interpretation of the conversation on which the union relies is that it represented an 'understanding' given in good faith rather than a commitment. Nevertheless, it did generate an understandable expectation.
It is my recommendation that, if not successful in competition for permanency in the interval, the claimant be guaranteed continuance in an acting capacity until end of December 1999. In this period assignment/deployment to be a matter for Management".
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 17th of July, 1997 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal on the 3rd of October, 1997.
UNION'S ARGUMENTS:
3. 1. The worker has held the position of acting nursing officer in the Psychiatric Services at St. Brendan's Hospital since 1990. She met the criteria for appointment to the post of nursing officer in 1995 in that she was successful at interview and placed on a panel from which existing vacancies and arising vacancies would be filled.
2. A vacant nursing officer post existed in the Psychiatric Services at St. Brendan's Hospital during the lifetime of the panel.
3. The worker was given a clear understanding by Senior Nurse Management that she would be appointed to a permanent post. In May 1996, a nursing officer post vacancy arose at St. Brendan's Hospital. In the circumstances it is not uncommon for panels to be extended.
4. While the Rights Commissioner findings did indicate that the worker be guaranteed continuity in an acting capacity until the end of December '99, no reference to being appointed to a permanent nursing officer post was indicated.
5. The worker has accrued considerable supervisory experience by holding an acting nursing officer post since 1990, her grievance at the failure of the Eastern Health Board to appoint her to a permanent nursing officer post, is reasonable and justified. The Union request the Court to recommend in her favour.
BOARD'S ARGUMENTS:
4. 1. The panel for nursing officers for St. Brendan's Hospital was advertised on the basis that it would exist for 1 year only. It is clearly stipulated that vacancies may be filled from this panel as they arise during the 12 month period. It is the normal practice of the Board not to extend panels and in this particular situation no vacancies existed at the expiry date.
2. 17 people were chosen for the panel from which 8 were appointed, hence should the worker be successful in gaining a permanent appointment without a vacancy then it would create an expectation on behalf of all of the personnel who were not appointed and assigned as a result of the existence of this panel.
3. The worker's assignment to acting nursing officer is based on the seniority practice applicable throughout the St. Brendan's Hospital complex. She has gained from this arrangement and has been treated fairly over the years.
4. St. Brendan's Hospital has been down-sized significantly over the last number of years but has still managed to retain almost its original complement of nursing and deputy nursing officer posts. To create a position over and above these particular posts cannot be justified.
5. The Board accepted the Rights Commissioner's Recommendation which granted the worker a guarantee of continuity in an acting nursing officer capacity until the end of December 1999. Although the Board has accepted the Rights Commissioner's Recommendation it must be stated that this recommendation was based on an understanding which was given in good faith rather than a commitment based on existing or available vacancies.
6. The Board is of the view that the worker has been in receipt of considerable acting up arrangements to date and has gained significantly from same. It must be stated that the appointment of the worker outside the existence of a panel is contrary to the accepted practice and recruitment requirements imposed on the Board.
7. The Board requests that the Court find against the worker's request to be appointed as nursing officer and also requests that the Court give a recommendation in relation to the considerable benefits awarded to but not accepted by the worker by the Rights Commissioner.
DECISION:
The Court having considered the written and oral submissions finds that the Rights Commissioner's Recommendation is not unreasonable in this case.
The Court therefore rejects the appeal and upholds the Rights Commissioner's Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
21st October, 1997______________________
F.B./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.