FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - NORTH EASTERN AREA - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation r-033213-IR-05-DI
BACKGROUND:
2. The case before the Court concerns a dispute between the HSE-Northern Area and SIPTU in relation to the employment status of a employee initially employed as a Chef Grade II by Cavan Services for the Elderly since approximately 1984. In 1994, having been employed a Chef Grade II at St Felim's Hospital, the worker applied for a position in Cavan General Hospital and was successful. Subsequently in 2001, the worker applied for a transfer from Cavan General Hospital to take up any vacancies that may arise at the Ballyconnell facilty of the Services for the Elderly.
In 2004 following a period of negotiation between management and SIPTU, an agreement was reached whereby vacancies arising at Services for the Elderly Cavan
would be offered in the first instance to workers within that service.
The Union's position is that the worker transferred to Cavan General Hospital in 1994 to facilitate management, but maintained her status within Cavan Service for the Elderly and hence should not have been excluded in the first instance from subsequent vacancies arising in the Service.
Management's position is that when transferring from St Felim's Hospital, the employee was aware of the fact that she was now directly employed by Cavan General Hospital, a fact that she herself acknowledged when applying to be transferred back to Services for the Elderly in 2001.
The dispute was referred to a Right's Commissioner who issued his Recommendation on 7th September, 2005 as follows:
"Having reviewed the submissions made by the parties I accept the respondents arguments that the complainant of her own volition, requested and was granted a transfer from St Felim's Hospital Cavan to the Cavan- Monaghan Hospital group with initial assignment to Cavan General Hospital in 1994. The claimant is therefore an employee of Cavan General Hospital. Under the agreement reached between SIPTU and the former NEHB, it was agreed that the filling of posts would, in the first instance, be confined to employees of Services for the Elderly. As an employee of Cavan General Hospital, this agreement prohibited the claimant from applying for the vacant position in 2004. Furthermore, as Cavan General Hospital is not part of Services for the Elderly the agreement also prohibits the claimant from transferring to that service prior to the agreement ending in 2005.
While I can understand that the claimant feels that her service,competence and commitment has not been recognised through an upgrading of her position, the respondenthas complied with the conditions and terms as set down in the Cooks/ Chefs report.
I find against the claimant's complaint under the Industrial Relations Scts, 1969 to 2004."
On the 17th October, 2005, the Union appealed the Right's Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court Hearing took place on 5th April 2005.
UNION'S ARGUMENTS:
3. 1. The worker transferrred to Cavan General Hospital to facilitate management who had confirmed that St Felim's Hospital would be closed.
2. It is unreasonable that the worker is ineligable to apply for positions within the Services for the Elderly. At the time of transfer in 1994, it was not clarified to the worker that she would be an employee of Cavan General Hospital following the transfer.
COMPANY'S ARGUMENTS:
4. 1. When transferring from St Phelim's Hospital in 1994, the worker was informed in writing of the change in her employment status and that she would be a direct employee of Cavan General Hospital.
2. The worker's request to transfer back to Services of the Elderly, Ballyconnel, is currently being considered by Management, should any suitable vacancies arise.
3. Management could not allow the worker to transfer to one of the vacant posts as agreement had been reached with SIPTU in relation to vacancies applying in the first instance to existing staff within Care for the Elderly.
DECISION:
Having considered the written and oral submissions of the parties, the Court upholds the Recommendation of the Rights Commissioner and dismisses the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
24th April 2006______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.