FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EASTERN HEALTH BOARD - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Mr. Somers |
1. Appeal Rights Commissioner's Recommendation IR495/99/CW
BACKGROUND:
2. The dispute concerns one worker, a temporary Environmental Health Officern (EHO), who has been employed by the Board, in that capacity, since 1994. From 1975, the worker had been employed by the Board as a permanent Environmental Health Officer, until 1982, when she resigned her post. She claims that, due to her being employed in a temporary capacity, she is unfairly treated in comparison to permanent colleagues, in respect of her being denied pay increments, access to the Board's pension scheme, promotional opportunities and uncertified sick-leave.
The Board's position is that it is governed by relevant Department circulars and cannot treat the claimant any differently to her temporary colleagues.
The dispute was the subject of an investigation by a Rights Commissioner who found, inter alia, that none of our employment legislation has provisions for 'temporary' employees, that the number of temporary employees seems to be an historical anomaly, and that although changes in pay and conditions are jointly negotiated between the HSEA and the Trade Unions does not necessarily make them fair. He found, further, that the Board's position that the claimant had the right to apply, through public competition, for permanent appointment, was reasonable. The Rights Commissioner recommended "that the Board considers how it could waive the open competition requirement" in order to satisfy the claimant's reasonable aspirations.
The worker appealed the Rights Commissioner's Recommendation, to the Labour Court, on the 20th December, 1999, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 22nd March, 2000, the earliest date convenient to both parties. Both parties made written submissions to the Court, which were expanded upon orally during the course of the hearing.
3. 1. The worker is denied the rightful incremental pay-scale based on 13 years' service with the Board. Her present rate is based on the 3rd increment of the pay-scale. This situation is unfair and exploitative.
2. The worker cannot avail herself of the Eastern Health Board's pension scheme, and, despite her service, has no access to a pension. Even if she were to become permanent, she would have to buy her missing years without the benefit of EHB contributions.
3. The worker is denied promotional opportunities. As a temporary Environmental Health Offices, she is precluded from applying for internal promotion to Acting Senior EHO. This is inconsistent with Local Appointments Commission requirements for Senior EHO, which are 5 years experience, including one year's permanent service.
4. In respect of uncertified sick-leave, permanent EHOs can take up to 2 consecutive days' uncertified sick-leave. Despite the worker's 13 years' experience, she must take annual leave in the event of a day's illness.
BOARD'S ARGUMENTS:
1. Permanent appointment as an Environmental Health Officer can only be made by the Local Appointments Commission. Currently, a number of competitions are being processed by the Commission. No mechanism can be identified to waive open competition.
2. Payment of incremental credit for temporary officers was previously as set out in circulars from the Department of Health & Children. Those agreements have been the subject of recent negotiation by the HSEA and IMPACT Union which will be of benefit to the claimant (details supplied to the Court).
3. The Board has treated the claimant no differently from her temporary colleagues and is not in a position to come to an individual arrangement with her outside the terms of Department Circulars and Union/Management agreements.
4. Through its communications with the Department and the Local Appointments Commission, the Board acted on the Rights Commissioner's Recommendation insofar as it was possible.
5. Any changes or new schemes in relation to conditions of employment are negotiated with relevant Trade Unions by the HSEA on behalf of all employers within the public health sector.
DECISION:
The Court has given serious consideration to this appeal of the Rights Commissioner's Recommendation. The Board was recommended by the Rights Commissioner to consider how it could "waive the open competition requirement". The Court is satisfied that the Board took the necessary steps to give effect to this recommendation but found that it was not feasible to comply with it. The Court accepts that existing arrangements for permanent appointments, which were put in place by the Minister, are beyond the control of the Board.
The Court so decides.
Therefore, in accordance with the procedures of the Court, the appeal fails.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th April, 2000______________________
MK/MKDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.