FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : MID-WESTERN HEALTH BOARD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Acting-up allowance.
BACKGROUND:
2. The dispute concerns a claim on behalf of a psychiatric nurse, at St. Joseph's Hospital, Limerick, for loss of earnings, on the grounds that she was denied an acting-up assignment (Deputy Nursing Officer) for the period February, 1993 to January, 1997. The Union claims that the worker in question was the most senior staff nurse in 1993 and should automatically have been assigned to the next long-term acting-up position. The acting-up assignment to Deputy Nursing Officer, to which the worker was appointed in January, 1997, carries an allowance of approximately £2,000 per annum. The Board's position is that when acting-up positions are being filled in a temporary capacity, factors taken into account include suitability, seniority and expressed interest in the post. (In the case of short-term appointments, a nurse with the longest service in the particular ward will be appointed and in the case of long-term appointments, a nurse with the longest service in the hospital will be appointed).
The Board claims that, had the worker expressed interest in the position, she would have been appointed to it. The Union's view is that it was the responsibility of the Hospital's redeployment officer to advise that the vacancy existed. The dispute was the subject of a conciliation conference under the auspices of the Labour Relations Commission, at which agreement was not reached. The dispute was referred to the Labour Court, on the 20th of January, 1998, in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court carried out its investigation, in Limerick, on the 24th of March, 1998.
UNION'S ARGUMENTS:
3. 1. The worker in question was not formally notified of the vacancy for which she would have been next on the panel. Deployment in the Hospital is the responsibility of the Assistant Chief Nursing Officer and one of the functions of the office is to notify staff due for acting-up assignments. The worker did not make representations as it was her view that it was not appropriate for her to do so, and clear instruction from management should have come to her to avoid any misunderstanding.
2. The worker came into the psychiatric service in the 1950s and for 3 decades a strict hierarchical structure prevailed, a system of which she was a product. She respects authority and believes it to have been the role of management to notify her of the vacancy.
BOARD'S ARGUMENTS:
4. 1. The worker did not indicate at that time or up to late 1996 that she had any interest in re-assignment for acting purposes. The Chief Nursing Officer was of the view that she was quite happy in her assignment, as she seemed to work particularly well with the Nursing Officer there and performed her duties throughout the period in an exemplary manner.
2. The normal practice in making temporary appointments to supervisory positions takes a number of factors into account. As well as suitability for the particular assignment consideration is given to staff who make it known they are available for the assignment. Importantly, a nurse's ranking on the joint male/female integrated seniority list is used to decide cases where there is more than one person interested. As a result it is not necessarily always the "most senior" nurse who is offered or fills the position.
3. In filling the Acting/Deputy Nursing Officer's position in question, in 1993, nursing management were very much aware that this ward was not a popular choice of assignment with staff, because of the nature of the work there. Against this background, an existing permanent staff nurse with considerable experience within the ward was offered and took up the acting position and was paid the appropriate allowance from October 1993 until January 1997. None of the staff who had higher ranking on the seniority panel, and this included the worker, expressed any interest in the position or indicated any objection to the decision.
4. There was no question of any attempt or intention to deny the worker an acting-up position. This is demonstrated by the fact that she had 34 weeks acting up since October 1993, and also that she was accommodated at the earliest reasonable date after she expressed interest in acting-up, at the end of 1996.
5. The allowance was paid to a colleague of the claimant. This is not a case of compensation for duties performed by the worker as the work was carried out by the other nurse who was remunerated appropriately.
6. If the claim were to be successful, there would be considerable knock-on effects which would have considerable cost-implications for the Board (details supplied to the Court).
RECOMMENDATION:
Having considered the written and oral submissions, the Court does not recommend concession of the Union claim.
It was not unreasonable for the Employer to assume that the claimant was not interested in reassignment for acting-up purposes and the Court is also conscious that she was not the senior eligible person at the time.
However, the Court recommends that the parties meet to agree a more formal method of advertising positions that become available.
Signed on behalf of the Labour Court
Finbarr Flood
22nd April, 1998______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.