FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST. VINCENT'S UNIVERSITY HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners Recommendation IR13706/03/GF.
BACKGROUND:
2. The worker's grievance is that she believes that her access to promotion is being blocked by the Hospital. The grievance was the subject of an internal investigation in the Hospital in September, 2002. The worker appealed the investigation committee's findings to a Rights Commissioner in August, 2003.
The worker referred to three posts that she applied for by interview, as follows:
(1) In September 2000, she was the only applicant for the post of Respiratory Nurse Specialist in Sleep Disorders. She was not interviewed for the post. When it was re- advertised in November, 2000, she applied again but was unsuccessful.
(2) In April, 2001, she applied for the post of Divisional Nurse Manager for the Cardiac and Respiratory division. The interview took place on the 2nd of August, 2001. In September, 2001, she was told by the Director of Nursing that she would not be getting the job.
(3) The worker applied for the post of Bed Manager in October, 2003. She was one of two applicants but again she was unsuccessful.
In late 2001, she applied for the post of Health Promotion Officer and was successful at interview. However, the worker regarded this more as a "sideways" move than a promotion.
The worker requested a meeting with the Director of Nursing following the second interview and a meeting took place on the 4th of October, 2001. Following the meeting, she claims that she was told by a consultant that it had been decided even before the interview on the 2nd of August, 2001, that she would not be getting the job.
The Hospital denies the worker's allegations. It claims that in each case the most suitable candidate was chosen and that there was no bias against the worker. It also strongly denies the claim made by the worker about the consultant's comments.
The worker was unhappy with how the interviews were conducted and about comments made to her during and after them. She also claims that after one interview her results had been told to another candidate before her.
The worker referred her case to a Rights Commissioner and his findings and recommendations were as follows:
"I am convinced of the claimants integrity and recollection but the absence of her talkative colleagues to give evidence outside of the organisation will mitigate against her and for that reason I am forced to find in the respondent's favour and dismiss the complaint".
The worker appealed the recommendation to the Labour Court on the 29th of October, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th of January,2004.
UNION'S ARGUMENTS:
3. 1. The worker believes that she was the most suitable and qualified candidate for each of the three interviews she did.The successful candidates had less experience than her.
2. The worker was told on each occasion that she had done an excellent interview but she was still not promoted. She was given no logical reason for her non-appointment.
3. The worker was unhappy with some of the comments made to her after the interview (details supplied to the Court). The Director of Nursing admitted that mistakes had been made in the scoring.
HOSPITAL'S ARGUMENTS:
4. 1. The Hospital carried out a thorough investigation into the worker's allegations. The members of the investigation committee were agreed by both sides.
2. The interviews were carried out by experienced interviewers, were competency based and the same questions were asked of all candidates.
3. The worker was unsuccessful for the post of Divisional Nurse Manger because she lacked the necessary competencies. She was not appointed to the post of Clinical Nurse Manager (Respiratory Nurse Specialist) because there was a better candidate.
DECISION:
The Union raised a number of serious complaints with the Hospital in relation to the treatment of the complainant in her application for promotional vacancies and related matters. Having regard to the nature and gravity of some of the complaints, it was agreed between the parties that they would be investigated by a special committee appointed for the purpose. The terms of reference of the committee, its composition and method of operation were all agreed with the Union with the concurrence of the complainant. The Union, on behalf of the complainant, has now rejected the report and findings of this committee.
It is the Court's view that where, as in the present case, an agreed internal investigative mechanism is put in place to investigate allegations of impropriety, the outcome of the investigation should generally be accepted by the parties concerned. The Court could only embark upon its own investigation of the issues involved where there is specific provision for an external appeal or where the result is plainly irrational or unfair.
There was no express provision in this case for an external appeal to a Rights Commissioner or to the Court. Furthermore, no basis has been suggested upon which the Court could conclude that the investigative process was carried out other than in the manner agreed. Whilst the complainant clearly disagrees with the findings, they are based on the evidence adduced by the committee and are neither irrational nor unfair.
In the circumstances, the Court is of the view that the findings of the investigative committee should be accepted by all parties. The Court is strongly of the view that the complainant and the management personnel who were directly involved in this dispute should now seek to restore normal working and personal relations and put this matter behind them.
The recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
26th January, 2004______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.