FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OUR LADY'S HOSPITAL FOR SICK CHILDREN, CRUMLIN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR1831/00/JH.
BACKGROUND:
2. Arising from national negotiations in respect of radiographers, the hospital was to appoint a number of Clinical Specialist Radiographers. The criteria for appointment were set out in a document issued by the Health Services Employers' Agency (HSEA) in 1999. In January, 2000 the hospital management invited applicants for the post in dispute clinical (Specialist Radiographer Nuclear Medicine), based on their interpretation of the national agreement. In line with that interpretation, one person (Employee A) was invited to apply. Subsequently, the claimant, a basic grade Radiographer, wrote to management stating that, in accordance with criteria set out in the agreement, he and Employee B, a Senior Radiographer, should have been invited to apply. The hospital then interviewed Employee A, Employee B and the claimant. Employee A was successful at interview. The claimant raised objections to Employee A's appointment stating that Employee A did not have the necessary service to meet the criteria set out in the agreement. Employee A was not appointed pending the outcome of procedures.
The Union claims that, in accordance with clause 4.1 of the agreement in respect of the first filling of the position, the following criteria related eligibility should apply:
- (a) Candidates must possess a recognised post basic qualification in the specialist area involved and three years' experience in that area, or
(b) Not less than 6 years' experience in the specialised area,
and
(c) Be a permanent employee appointed not later than 1st July, 1997 with a minimum of one year's continuous service in the hospital involved at 1st July, 1998.
In its response to the Union's claim, management relied on clause 4.2 of the agreement which states that where a Senior Radiographer has already been assigned to a specialist area following a competitive process then the post-holder should be appointed to the position of Clinical Specialist Radiographer unless objective criteria exist for not doing so.
The hospital contended that Employee A was the Senior Radiographer in charge of Nuclear Medicine following an earlier competition. While the claimant and Employee B did work in the section at different times, neither held the position of person effectively in charge of the section. The national agreement was designed to provide promotional opportunities for Radiographers band, particularly, to recognise the role of the person in charge, in this case, Employee A.
The dispute was the subject of investigation by a Rights Commissioner. [Prior to the hearing, following discussions between the parties and the Rights Commissioner, it was agreed that Employee B would be appointed to the top of the Clinical Specialist Radiographer scale, holding the rate of pay on a personal basis.] Following her investigation, the Rights Commissioner concluded as follows:-
- "If management believed that their interpretation of the agreement was correct, there should have been no interview for this particular post. Employee A either was in charge or she was not. If management could successfully argue that she was in charge then, under their interpretation of clause 4.2, she should have been appointed Clinical Specialist Radiographer. Instead they accepted applications from other staff who were unlikely to be appointed to the post. In doing so, they consulted with the HSEA in respect to the letter from the claimant. However they made no effort to discuss the situation either with him or, more appropriately, given his own direct involvement, with the Union official involved in the national negotiations. The Rights Commissioner was of the view that the willingness to make some recompense to the individuals involved showed an understanding on the part of management that they had made a number of errors in their attitude and response to this entire situation. The Rights Commissioner concluded further that, as Employee B had accepted the offer made to her, the issues remaining in dispute were the claimant's position and the effective date of my appointments".
When he did not succeed in being appointed he then, by means of a letter dated 16th February, 2000 objected to Employee A's eligibility. The Rights Commissioner found that this was not acceptable practise and does not form a reasonable basis for recommending, post-process, that a recommended candidate should not be appointed. The Rights Commissioner found, further, that the Union's claim that all three candidates should be appointed to the post of Clinical Specialist was not sustainable as that post has a very clear job description and requires the post-holder to perform particular duties in charge of a designated area.The Rights Commissioner recommended as follows:-- Based on the submissions made at the hearing and for the reasons set out in the conclusion above, I consider that the employer bears sufficient responsibility for what occurred to warrant compensation to the claimants. Employee B has accepted the offer made by management. In the case of the claimant, I recommend that he be upgraded to Senior Radiographer. Each of the claimants will then have moved up one grade. With regard to the effective date of the upgradings, Employee A should receive the full terms of the national agreement. The claimant and Employee B should receive their upgrades with effect from 20th January 2000.
The Union appealed against the Rights Commissioners Recommendation, on the 1st September, 2000, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal, on the 26th September 2000.- "If management believed that their interpretation of the agreement was correct, there should have been no interview for this particular post. Employee A either was in charge or she was not. If management could successfully argue that she was in charge then, under their interpretation of clause 4.2, she should have been appointed Clinical Specialist Radiographer. Instead they accepted applications from other staff who were unlikely to be appointed to the post. In doing so, they consulted with the HSEA in respect to the letter from the claimant. However they made no effort to discuss the situation either with him or, more appropriately, given his own direct involvement, with the Union official involved in the national negotiations. The Rights Commissioner was of the view that the willingness to make some recompense to the individuals involved showed an understanding on the part of management that they had made a number of errors in their attitude and response to this entire situation. The Rights Commissioner concluded further that, as Employee B had accepted the offer made to her, the issues remaining in dispute were the claimant's position and the effective date of my appointments".
3. 1. The Agreement on the introduction of the Clinical Specialist Radiographer grade is explicit in stating that on the first filling of the posts, duration of service was to be considered the critical eligibility factor.
2. The Union refutes the Hospital's claim that the Employee A was deemed eligible by virtue of having been appointed a Senior Radiographer in Nuclear Medicine. In fact, she was appointed as a General Senior Radiographer and was, subsequently positioned in Nuclear Medicine ahead of the claimant and Employee B, as existing staff members working and providing the service in Nuclear Medicine.
3. The claimant is well-qualified for the position of Clinical Specialist. He is the holder of an MSc in Nuclear Medicine, one of only 4 radiographers in Ireland to do so. Based on the interview results, he scored significantly higher than the other eligible candidate. He would have had legitimate expectations of securing the position had the Hospital not knowingly included an ineligible candidate in the process.
4. In view of the Hospital's acceptance of the errors made in this case, the claimant should be made at least the same offer that was made to Employee B.
5. The Union rejects the Hospital's contention that precedent situations existed in other hospitals. Only in circumstances where a department which had not been operational prior to the implementation of the agreement, but which then warranted the introduction of Clinical Specialist posts, or where no competition existed, were such appointments made.
6. Employee A cannot in be faulted for what has happened. The Hospital was, however, made aware of breaching the agreement and ignored the fact. Bearing in mind Employee A's ineligibility and the claimant's qualifications and interview results, he should be upgraded in the same way as his colleague, Employee B.
HOSPITAL'S ARGUMENTS:-
4. 1. The intent and spirit of the Agreement was to provide promotional opportunities within existing Radiology departments and to upgrade Senior Radiographers in accordance with the Working Party recommendation.
2. Following a fair and impartial selection process, Employee A was deemed to be the most suitable candidate. She had already been running the Nuclear Medicine Department and had displayed significantly greater experience in this field than other candidates.
3. Concession of the claim would lead to the creation of inequities within the Radiology Department whereby Basic Grade Radiographers could be appointed over the heads of their Senior Radiographers to Clinical Specialist positions.
4. On advice from the HSEA, it is the Hospital's belief that the provision regarding length of service requirement was included to clarify that these were internal upgradings confined to each location.
5. The objections regarding the preferred candidate's suitability were raised only after the claimant was not successful in his candidacy. There had been no objection previously to the successful candidate being interviewed.
6. The Hospital has been made aware of precedent situations in other hospitals where individuals who did not strictly fit the service criteria were upgraded at the instigation of the Union.
DECISION:
On the basis of the evidence presented to it, the Court is of the view that there are no grounds to alter the recommendation of the Rights Commissioner and, therefore, the appeal is dismissed.
Accordingly, the Rights Commissioner's Recommendation is upheld.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th October, 2000______________________
MK/MKDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.