FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CORK UNIVERSITY HOSPITAL (REPRESENTED BY HSE SOUTH) - AND - GROUP OF WORKERS (REPRESENTED BY IRISH DENTAL ASSOCIATION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-035115-IR-05-DI, IR-035116-IR-05-DI R-035117-IR-05-DI, R-035118-IR-05-DI.
BACKGROUND:
2. The four workers concerned are employed as Senior Dental Surgeons in St. Finbarr's Hospital, Cork. One of the workers - Worker A - is currently employed in the Orthodontic Unit in the Hospital. The Union's case is as follows:- throughout the 1990s the Health Services were faced with a high demand for dental surgeons who could provide services in orthodontics. In 1993 the HSE South (formerly Southern Health Board) advertised for the post of"secondment of existing Dental Surgeons to the Orthodontic Unit, St. Finbarrs' Hospital". Documentation circulated at the time indicated that:-
"Training would be provided in the diagnosis and management of orthodontic problems. The application would be required to provide orthodontic treatment under instruction for patients on the Southern Health Board waiting lists. The application would be responsible in time for providing an orthodontic service in one of the Community Care areas. This would include organisation of referrals, assessment of patients for orthodontic treatment, and the provision of treatment for eligible patients"
The four workers applied and were successful and were offered a secondment to the Unit to work under the supervision of the Consultant Orthodontist in 1994/95.Between 1997 to 1999 two of the four workers commenced training on an orthodontic specialist programme along with trainees from other Health Boards. However, whilst other Health Boards showed a degree of flexibility in allowing applicants to achieve the necessary qualifications, as per a recommendation of the Special Advisory Committee (SAC), the HSE South did not fulfil its commitment to provide proper training for the four workers concerned. As a result the workers' careers have not progressed as they should have and they are on a considerably lower salary than they would have expected at this stage.
The Hospital's case is that the workers are paid at the appropriate grade and that they were afforded all opportunities within the resources of the Health Service.
The case was referred to a Rights Commissioner and his Recommendation was as follows:-
" When the Claimants were successful in their applications to be seconded to "Training Posts in the Orthodontic Unit St. Finbarr's Hospital" it was on the understanding that the documentation related to these secondments confirmed that "training would be provided in the diagnosis and management of Orthodontic problems and that the applicant would be responsible in time for providing an Orthodontic service in one of the Community Care Areas".Due to no fault of the Claimants, no formal training programme was established during the 1990s.
A very long delay in appointing a replacement Professor in Orthodontics in the Cork Dental School and Hospital was a major factor in the failure to provide the Claimants with formalised training.
In its review of Orthodontic training programmes, the SAC and the Joint Committee for Specialist Training in Dentistry recognised that during a transitional period that"some flexibility is shown by the Training establishments and consideration may be given to accepting applications from those already working in the Health Board Regional Units with only the Primary FDS".This group also recommended that"Once a senior full time academic has been appointed the SAC recommends that four internal trainees could be accommodated".A Professor of Orthodontics was appointed to the Cork Dental School and Hospital in 2003. To date no formal training programme has been established.
I find that the respondent failed to honour the terms of the positions to which the Claimants were seconded to in 1994/1995. While the Claimants have been appointed, without competition to position as Senior Dental Surgeons, I do not find that this has adequately compensated them for the barriers that they have encountered in their endeavours to pursue a career in Orthodontics.
In making this Recommendation I am also mindful of the designated bodies educational and training requirement for approval to specialists Orthodontic level.
Having considered the submissions made by the parties I recommend that the 4 workers be appointed, on a "red-circled" / person to holder basis, to the position of Principal Dental Surgeon (P&E) with effect from 1st January 2005. I also recommend that the respondent continue to provide support and facilitation to the workers in pursuing their career path to become Orthodontists. In the case of Worker A I recommend that the respondent look favourably on her wish to remain employed in the Orthodontic Unit in St. Finbarrs Hospital for the remainder of her career".
(The workers were named in the above recommendation.)
The HSE appealed the Recommendation to the Labour Court on the 28th of July, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd of May, 2007, in Cork.
(The workers were named in the Rights Commissioner's Recommendation).
UNION'S ARGUMENTS
3. 1. The HSE South has breached the terms of the contract upon which each of the four workers were seconded. The failure of the HSE South to provide specialist training for the four workers arose from disagreements between health service management, the dental schools and some members of the Orthodontic Community. They are the only people involved whose professional careers have been negatively affected.
2. Despite not receiving the specialist training promised each of the four workers has continued to provide a specialist level orthodontic service to patients of the HSE Southern Area since 1995.
HSE'S ARGUMENTS:
4. 1. Opportunities for formal training in orthodontics in Ireland were and remain very limited: access was afforded to the workers in the Orthodontic Unit to any such opportunities as they arose to those who were eligible to apply.
2. One of the claimants was offered orthodontic training in the University of Cardiff in 2002. Although he initially requested inclusion on the programme he subsequently withdrew. Another claimant is currently participating in the post graduate training programme and is receiving full support from the HSE.
3. The claimants were open to apply for other posts including that of Principal Dental Surgeon.
4. There are no positions at the Principal Dental Surgeon level existing in the Orthodontic Service or any other dental service to which to appoint the claimants on a personal-to-holder basis.
DECISION:
The Court has carefully considered the complex issues arising from this appeal and has come to the following position:-
The claimants should remain at their present grade, but every assistance should be given to them in their necessary specialist training and gaining advancement, both educationally and in their careers. This should include concession of all necessary paid time off and reimbursement of fees and there should be no loss of pay or diminution of their salaries as Senior Dental Surgeons.
However, in view of the commitment given in the letter of advertisement in 1993 whereby a real expectation was created that a greater amount of training would be provided than was ultimately given, the Court is recommending compensation in full and final settlement of this matter to the amount of €5000 for each of the four people involved in this case.
The Court so decides and allows the appeal and varies the Rights Commissioner's Recommendation accordingly.
Signed on behalf of the Labour Court
Raymond McGee
13th June, 2007______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.