FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTHERN AREA HEALTH BOARD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation IR15791/03/JH
BACKGROUND:
2. The worker was appointed as a Clinical Nurse Manager 1 (CNM 1) following the implementation of LCR16330 in October, 1999. The appointment was in Community Mental Health Services Area 6, and the worker obtained the post, without interview, as he was the most senior Staff Nurse in Area 6 at the time. In September, 2002, a CNM 2 was appointed as Acting Assistant Director of Nursing to St Ita's Hospital. It was assumed that this would be a short-term position and that she would return to her CNM 2 post in Area 6. The worker concerned, who was rostered to Daneswood Hospital, assumed her position on a seniority basis. Because the Assistant Director of Nursing panel had expired, the Acting Assistant Director of Nursing continued in her position in St. Ita's Hospital. As a result, her position in Daneswood was now considered a long term vacancy.
In March, 2003, it was decided to fill two acting CNM 2 posts (including Daneswood) on a permanent basis by means of a confined competition to eligible staff in Area 6 only. The worker concerned, who did notapply for either of the two positions, continued to act as CNM 2 in Daneswood until the 9th of June, 2003, when the position was filled by a successful candidate. The worker's case is that by custom and practice he should have continued to act in the CNM 2 post.
The worker referred his case to a Rights Commissioner whose recommendation was as follows:
"Based on the submissions made and for the reasons set out in the foregoing I do not recommend concession of the worker's claim"
(The worker was named in the above recommendation)
The worker appealed the recommendation to the Labour Court on the 26th of May, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place n the 20th of July, 2004.
UNION'S ARGUMENTS:
3. 1. Seniority has always prevailed in the Psychiatric service in relation to acting up in a higher post. The most senior nurse acts up when the appointed nursing officer is not available. This agreement applies throughout the Health Service
2. The Director of Nursing decided to fill 2 CNM 2 posts by confined competition, thus depriving the worker of an acting up allowance. As the CNM 1, the worker should have filled one of these posts by reason of seniority. The worker told the Director of Nursing that he was unhappy with the situation.
BOARD'S ARGUMENTS:
4. 1. The Board spoke to SIPTU and the Psychiatric Nurses Association (PNA) about advertising the two CNM 2 posts by confined competition. Neither Union objected. The worker only objected the day after the post was filled. He chose not to apply for the competition.
2. Long-term promotional vacancies within Area 6 have in the past been filled in an acting capacity by competitionconfined to existing staff within the area (the Board supplied examples of this to the Court).
DECISION:
The Court is satisfied that the conclusions reached by the Rights Commissioner are accurate and that her recommendation is reasonable having regard to the facts of the case.
Accordingly, the Court can see no reason to interfere with the recommendation of the Rights Commissioner. The recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
3rd August, 2004______________________
CON/PMChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.