FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EAST COAST AREA HEALTH BOARD - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation IR11947/02/GF
BACKGROUND:
2. The issue involves the filling of an occupational therapy manager/job sharing post in Community Care Area 10, Co. Wicklow. The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation issued on the 28th February 2003, is as follows:-
"I have given this matter careful consideration and I must come to the conclusion that the reference is a typing error and the description is very clear - Occupational Therapy Manager, Job Sharing.
I believe the covering letter saying she wished to continue full-time had not got the necessary approval and was purely asperational. For the reason I am deciding in favour of the Board".
On the 11th March 2003 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 30th April 2003.
UNION'S ARGUMENTS:
3. 1 The Union are appealing, Rights Commissioner's Recommendation No. IR 11947/02/GF as it does not take into account the unfair treatment of the worker in filling the job-share occupational therapist manager post.
2. The acceptance form signed by the worker on the 15th April, 2002, is unequivocal. Its explicitness is heightened by the worker giving a date two weeks later to take up duty. She chose the earliest possible date, as the form suggested, Eastern Health Shared Services (EHSS) needed that time to finalise her appointment.
3. The worker's hand written note of the 15th April, 2002 clearly accepts the job sharing post and points out her preferred options. The note does not, as East Coast Area Health Board (ECAHB) suggests contain 'insistence' of working full time. It refers to a process ongoing between the Union and theECAHB.
4. On 10th July 2002 the worker was contacted by Recruitment in EHSS informing her that her appointment was now finalised. It would be backdated and a commencement date of 15th July,2002 was agreed. She was asked to liaise with her Occupational Therapy Manager and General Manager regarding suitability of that date. When the worker spoke to the Occupational Therapy Manager and General Manager she was informed that she could not take up the post. She was asked to defer reporting for duty for one or two weeks until discussions took place between the Union and the ECAHB. No meeting took place.
5. It is clear that EHSS understood the worker had accepted the job-sharing post and EHSS is attempting, despite opposition from ECAHB to put into effect the workers appointment. The issue has been ongoing for over two years. The ECAHB has not exercised its duty of care and responsibility to the worker and has acted unfairly towards her.
MANAGEMENT'S ARGUMENTS:
4. 1 The position in question was for an Occupational Therapy Manager Job-Sharing post. The worker was deemed suitable at interview and was offered the post subject to references etc. The worker signed an acceptance offer on 15th April, 2002 but attached a covering letter qualifying her acceptance and insisting that "I wish to continue to work full-time".
2. The Union on behalf of the worker suggested that she might work in two grades simultaneously or might undertake a body of extra work which would allow her to work in a management grade full time. Both suggestions were examined by Management and rejected as unworkable. The worker continued to indicate to her colleagues her unwillingness to accept a job-sharing post throughout the period.
3. In May 2002, the General Manager was informed of the intention the otherOccupational Therapist Manager, job-sharing partner's wish to resume full-time working. It was only when the other job-sharing partner signalled her intention to resume full time working that the claimant finally and reluctantly sought to accept the job sharing post on the 10th June, 2002.
4. The ECAHB acted reasonably in allowing the claimant ample time to consider the offer of appointment to the job sharing post. The nature of the post, i.e. job-sharing was never in doubt. The other job sharing partner's offer to return to work full time was accepted by the General Manager at a time that the claimant had made it clear that she did not want to job share.
DECISION:
The Court is satisfied that the claimant did accept the post when she signed the acceptance form dated the 15th April, 2002. Although she did express a wish to continue working full time in a letter on the same day, it is clear that this was based on a belief that discussions on this matter were to be concluded between the Company and her Union representative.
Management indicated to the Court that it was only on the 10th May that the other employee had indicated her intention to return to full time working at which stage management, to quote from its own letter, was of the view that the claimant had neither accepted nor rejected the post.
It is the view of the Court that at this point the Company should have asked the claimant, given their understanding of the situation, to either accept or reject the job offer, before proceeding to appoint the other employee to a full time post, thus precluding the claimant from taking up the post on offer to her.
It would appear that management, without informing the claimant that circumstances had changed, appointed another employee to the full time post and subsequently decided that the post on offer to the claimant was no longer available, without informing her.
The Court finds this to be unacceptable and that the claimant has been treated unfairly in this case. However, given the background to this case, rather than make a recommendation that might make a difficult situation worse, the Court recommends that the Company make an offer to the claimant to redress the situation. If the parties fail to reach an agreement then the Court will on request make a definitive recommendation on the redress to be made in this case.
The Court, therefore, rejects the Rights Commissioner's recommendation and upholds the appeal.
Signed on behalf of the Labour Court
Finbarr Flood
12th May 2003______________________
JB/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.