FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - SOUTH EAST AREA - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioners Recommendation R-020362-IR-04-DI.
BACKGROUND:
2. The issue involves a claim by the worker on temporary employment as a childcare worker since 1999 with the Health Service Executive - South East Area at the Short Term Unit in Waterford and claims he was disadvantaged by the failure of his employer to appoint him in a permanent capacity while at the same time giving preferential treatment to other childcare workers in the same location with less qualifications. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 20th May, 2005 the Rights Commissioner issued his Recommendation as follows:
- “Having considered the submissions by the parties I am of the view that the claimant was not treated unfairly in comparison to Ms. D and her colleagues who were appointed to permanent positions in 2000. While the decision to make these employees permanent may have been prompted by Ms D's. appeal, the appointments resulted from the decision to extend the conversion arrangements to the Units in Wexford and Waterford. The claimant was not, at that stage, a long-term temporary staff member and therefore the terms of the 1998 agreement did not apply to his circumstances.
While the claimant was again unsuccessful in his application for a permanent position in December, 2001, no evidence was provided to support the claimant’s belief that a member of the interview board showed bias against him.
Based on the above, I find against the claimants complaint”.
UNION'S ARGUMENTS:
3.1 The worker has a genuine grievance in that following 46 permanent promotions he was overlooked for every single one despite having the necessary qualifications, diploma, relevant experience and training up of most of those successful at promotion.
2. Management has been unable to satisfy the Union any reason as to why the worker has been unsuccessful with promotion competitions. The worker is an extremely experienced childcare worker, he has the qualifications, experience, ability and capability to do the job. He believes his employer has ignored his plight and any attempts that he has made to clarify why he has been treated so badly and has been ignored by management.
3. The Union has always welcomed conversion processes provided they were done in accordance with agreement.
4. The worker has been left with a substantial loss due to the difference in salary scales between the childcare leader's position and that of childcare worker which he is engaged in.
HEALTH SERVICES EXECUTIVE'S ARGUMENTS:
4.1 The conversion process for Non-Nursing personnel which the Claimant contends was unfairly and inconsistently applied and thus disadvantaged him in relation to permanency could not have applied for the following reasons:
- The Agreement was confined to non nursing (i.e. non-officer) personnel and the claimant is employed as a temporary officer grade.
- The agreement was confined to non-officer personnel who were in the system at 1st September, 1998 and who had more than 12 months continuous service or a total of 12 months service in 2 years. The Claimant did not commence employment with the then South Eastern Health Board until November, 1999.
2. Ms. D. was employed in Kilkenny during the specified period and was subsequently appointed to a permanent Assistant House Parent position.
3. Both Ms D. and the Claimant benefited from the terms of the 2001 National Child Care Worker Agreement by way of new salary scales.
4. The HSE refutes the Claimant's contention that the conversion process was utilised in an unfair and inconsistent fashion or that he was disadvantaged in relation to permanency.
DECISION:
The Court has considered the views of the parties expressed in their oral and written submissions and takes the view that the 2001 conversion process was conducted in a fair and transparent manner. The Union accepted that the Appellant did not technically qualify under the terms of the conversion process: however, it sought flexibility for the Appellant on the basis of his long service and qualifications.
A second issue related to the Appellant's contentions concerning his unsuccessful applications for two open competitions despite the fact that he had trained a number of candidates who were successful. The Court can find no grounds to suggest that the competitions were held in an unfair manner.
The Court concurs with the findings of the Rights Commissioner's Decision and upholds his Decision. The appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th April, 2006______________________
JB/MGDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.