FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE (EAST COAST AREA) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner’s Recommendation R-035863-IR-05/MMG.
BACKGROUND:
2. The Worker is employed by the HSE (East Coast Area) in the Local Health Office Dun Laoghaire as an Acting Grade V in the Social Work Department since 2nd January, 2001. She successfully competed for a place on the panel for the permanent post of Grade V but the panel expired before she was appointed, she continues to act as a Grade V. Historically the principle of 'appointment by designation' existed but after the National Framework Agreement in 2005 between the former Eastern Health Board and the Union IMPACT the only currently available route open to progress a professional career for Grades IV through to VII in the HSE is by way of a competitive interview process. The Claimant has been unsuccessful in this to date.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th July, 2007 the Rights Commissioner issued his recommendation as follows:
"Based on the submissions made and for the reasons set out in the foregoing I am satisfied that the post held by the claimant on an acting basis is a permanent post. I recommend that she be advised by her employer that she is confirmed in her Grade V position and that she is to receive and accept the appropriate terms and conditions of employment including incremental credit. This confirmation is to be effective from the 1st June, 2005, which pre-dates the appointment of the new panel".
On the 2nd August 2007 the Workerappealed to the Labour Court on the grounds that the above Recommendation was not implemented in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 17th October, 2007.
WORKER'S ARGUMENTS:
3. 1. The Claimant has worked for 23 years in the Health Service at various Grades and as an Acting Grade V for nearly 7 years, she has proved herself to be a diligent and efficient employee, there have been no complaints about her work.
- 2.The Rights Commissioner's Recommendation found in favour of the Worker being offer a permanent post, it is the opinion of the Claimant that this Recommendation should now be implemented immediately.
4. 1. The National Framework Agreement of 2005 outlines the basis for dealing with 'acting -up' arrangements. The HSE would favour securing a permanent post for the Claimant but the Union IMPACT has made it clear that it would likely precipitate industrial action if it were to breach the Agreement.
2. Appointments to permanent Clerical Grade IV,V,VI, and VII positions are filled from a panel that usually lasts for a year following a competitive competition.
DECISION:
This is an appeal by the worker of a Rights Commissioner's recommendation which found in her favour and recommended that she should be confirmed in the position she has been acting up in i.e Grade V position and receive the appropriate terms and conditions of employment for that grade including incremental credit, with effect from 1st June 2005.
The appeal concerns the HSE's failure to implement the recommendation. The HSE did not appeal the recommendation.
At the hearing HSE made it clear to the Court that it was anxious to secure a permanent post at Grade V for the worker, however, due to constraints within the HSE, it was difficult to do so.
Having considered the submissions of both sides, the Court sees no grounds not to find in favour of the worker's appeal and recommends that she should be appointed to a permanent Grade V post with appropriate terms and conditions of employment including incremental credit, with retrospective effect back to 1st June, 2005.
In view of the circumstances of this case the Court recommends that the HSE should consider reactivating the 2001 Grade V panel in order to facilitate this appointment, as the worker was successfully placed on that panel.
The Rights Commissioner's recommendation is varied accordingly. The worker's appeal is upheld
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th. January, 2008______________________
JF.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.