FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WESTERN HEALTH BOARD - AND - A WORKER (REPRESENTED BY PNA) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner Recommendation IR5056/01/JH.
BACKGROUND:
2. The dispute concerns the filling of 6 clinical nurse manager 1 posts. The worker contends that he was in a community settling at the time the posts were advertised and did not receive the advertisement prior to the closing date and was therefore not in a position to apply. The worker also contends the post should have been filled by the most senior staff members as was the practice previously and in accordance with the terms of the National Nurse Settlement. The board disputed this.
The matter was referred to a Rights Commissioner for investigation and recommendation.
The Rights Commissioner's recommendation is as follows:-
"Based on the submissions made and for the reasons set out in the foregoing I do not find the worker has a valid complaint and I do not recommend concession of his claim"
On the 23rd of July, 2002, the worker appealed the Rights Commissioner's recommendation to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. The Court investigated the complaint on the 18th of September, 2002, in Galway.
UNION'S ARGUMENTS:
3. 1. If the worker had known that the circular existed, he would not be requesting the Union to raise the issue, or if he had known would have been questioning any concerns he may have had about such a circular or the criteria involved.
2. The circular states that the post would be given from within the applicants and not be seniority and suitability alone.
3. The worker is the most senior Staff Nurse in the service, a fact that has been established and accepted by Management since March 26th, 2001, a full ten months following the closing date.
4. Clarification received from the Eastern Health Board reads:-
"There will be a requirement by employers to discuss the job profiles and the attendant duties and responsibilities with the candidate who is eligible to fill the management post on the basis of Seniority". This process is not intended as a formal interview to determine selection, as would be the case in the normal course of a selection process. Rather it should be conducted in a manner to ensure that the candidate agrees to accept the job profile and responsibilities associated with the post".
5. All documentation provided clearly shows that the Board had no understanding or concept of how the seniority system worked. There was no agreement on the criteria for filling these posts, or for that matter the type of posts, or where they were to be located or how they were to be filled.
6. The clear spirit of the agreement was that the most senior Nurses in the service were to be promoted. This was clearly understood and acted upon by other Health Boards but not by the Western Health Board.
7. Should the Court recommend in the worker's favour it will not result in the displacement of any nurses as to date this post has not been filled due to the ongoing dispute.
COMPANY'S ARGUMENTS:
4. 1. In the North Western Health Board, the Southern Health Board, the Midwestern Health Board and the Midland Health Board the method of selection which they used, is determined by seniority from amongst the applicants for the posts and not from amongst all the staff employed within the service for the hospital.
2. The Board's position with regard to the worker not being aware of the competition, nor having any knowledge of the fact that the competition was being run, is quite clear and the Board refutes this claim categorically.
3. There were months of discussion locally between management and unions with regard to the criteria which would be used to determine seniority and as such the minutes of these meeting were circulated widely.
4. Ignorance is no defence nor can it be considered as one.
5. The worker was required to apply to be included in the competition, which would then determine the post which would be filled on a seniority basis from among the applicants. Failing to become appointed under the seniority rule the worker would then have remained within the competition and be eligible to compete on an interview basis for the remainder of the posts.
6. It is not feasible at this stage for the Board to consider the eligibility criteria to be altered.
7. If the criteria is overturned and changed then all the appointments that have been made will be nullified or else the alternative will be that Management will have to appoint extra staff members to CNMI Posts throughout the country in order to facilitate the new rule changes.
8. It is not appropriate not is it possible for any of the parties locally to re-write a national agreement and fundamentally change its terms and conditions.
DECISION:
In dealing with this appeal the Court cannot be expected to offer an interpretation of a national agreement made between a number of Unions and the health sector employers as represented by the HSEA. Since there is no evidence of any disagreement at national level concerning the point at issue in this appeal, the Court accepts that the advice given by the HSEA to the Health Board in its letter of 23rd June, 2000, was correct. The Court could not interpret that letter as meaning other than that those interested in the posts in question would be expected to apply.
Accordingly, the Court does not accept that the Health Board acted wrongly in seeking to fill the posts in question by confined competition with the criteria for selection being seniority subject to suitability for 50% of the available posts. It is further noted that the method of notifying staff of the competition used in this case was the same as that used in the case of other competitions.
Having fully considered the submissions made by the parties, the Court, cannot disagree with the conclusions and recommendation of the Rights Commissioner. The Court affirms the Recommendation of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
3rd October, 2002______________________
HMCD/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.