FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST. OTTERANS HOSPITAL (REPRESENTED BY SOUTH EASTERN HEALTH BOARD) - AND - A WORKER (REPRESENTED SOLICITOR - F. HUTCHISON) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR8216/02/GF
BACKGROUND:
2. The issue involves the failure of the claimant to attain a CNM1 position. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 29th October, 2002 the Rights Commissioner issued his recommendation as follows:-
"I accept that the claimant did not receive a CNM1 post in seniority, as he did not have the requisite length of service to place him on the panels. In order to receive one it would have to be by open competition. The claimant has sent in an interesting supplementary submission after the hearing and I feel I cannot deal with it, short of sending a copy to the South Eastern Health Board (SEHB)and reconvening the hearing - this I have decided against - the claimant may avail of the appeal procedures open to him. I find in favour of the management."
On the 4th December, 2002 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 6th June, 2003, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3.1 The claimant was one of two eligible candidates who applied for a CNM1 position before the closing date. If the normal process had been followed i.e., interview and appointment six to eight weeks after the closing date the claimant would have been appointed. The Director of Nursing accepts this and confirmed same to the Rights Commissioner.
2. The interview was delayed for several months, eventually taking place on the 6th April, 2001 more than seven months after the closing date. The claimant was placed fourth on the panel. An appeal to the Rights Commissioner awarded the candidate placed third on the panel a CNM1 post. The same Rights Commissioner rejected the claimant's claim because he did not have the required service on the day the posts were awarded.
3. The candidate is satisfied that having been one of two eligible candidates who applied for two posts before the closing date, satisfied the criteria and attended interview as part of the required conversion process that he holds a personal entitlement to a CNM1 post.
MANAGEMENT'S ARGUMENTS:
4.1 Management have acted on a number of occasions to facilitate the claimant, the PNA and it's members. Those who received the CNM1 posts did so as per nationally agreed criteria. The claimant was placed on the panel as per his service. This service was not sufficient to place him high enough on the panel to attain the two CNM1 posts designated for filling by seniority.
2. The changes that occurred in both the closing date being lifted and the re-filing of a senior post again by seniority were all done at the behest of the PNA. The claimant being instrumental in making these requests.
3. The PNA cannot have this claim accepted based on the actions of a Management who were acting at the time to the wishes of this same Union.
DECISION:
Having carefully considered the submissions of the parties and the other information provided to it, the Court is satisfied that the closing date for applications for the disputed post was lifted by agreement with the claimant's Trade Union.
In the circumstances, the Court is satisfied that the conclusions and recommendation of the Rights Commissioner are correct. Accordingly, the recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
18th June, 2003______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.