FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Non-implementation of contractual agreement
BACKGROUND:
2. The worker is a Non-Consultant Hospital Doctor (NCHD) who applied for a position of Senior House Officer (SHO) on a three-year rotational training scheme in Psychiatry with the HSE South. NCHDs are an integral part of the delivery of mental health services across the Health System. The HSE South recruits NCHDs by national competition twice per year, in January and July. The HSE South advertised for NCHDs in January, 2007, and the worker was one of a number of applicants. He was short-listed and attended for interview on 7th March, 2007. As a result of the interview he was placed second on the list of successful candidates. In May, 2007, he was advised by letter of a SHO position in the North Lee Mental Health Services pending the arrival of satisfactory references, in this case from three Consultant Psychiatrists. When the Clinical Director of North Lee reviewed the references he recommended, as per letter dated 7th June, 2007, that the worker's appointment should not proceed, and the job offer was withdrawn.
The worker sought copies of the references. The Union's case is that the three referees who supplied the references all stated that they would be prepared to re-employ the worker if the need arose and would recommend him to another employer as a person of good character.
The worker referred his case to the Labour Court on the 26th October, 2007, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 5th June, 2008, in Cork. The worker agreed to be bound by the Court's recommendation.
UNION'S ARGUMENTS:
3. 1. The worker came second out of sixty applicants in the interview process indicating his suitability for the position. Two of the references were sent to the worker on the same day that the HSE sent him the contract of employment.
2. One of the documents that the worker was required to sign stated that if he accepted the post and then refused it he would be reported to the Irish Medical Council immediately with potentially very serious consequences. However there was no equivalent consequence for the HSE when it reneged on its job offer.
HSE'S ARGUMENTS:
4. 1. The Clinical Director made his decision not to offer the worker the post based on the written comments supplied by the Consultants, in addition to the their notes on the areas of "performance at work" which were noted as "average" by two of the Consultants.
2. Additional notes in relation for the worker to "greatly improve his basic clinical and psychiatric knowledge" were viewed as unsatisfactory considering that the worker had 3.5 years' psychiatric service to date.
RECOMMENDATION:
In the circumstances of this case, the Court is of the view that the best approach to resolving this dispute is for the HSE to arrange for the disputed references to be reviewed by an independent, suitably qualified practitioner(s). In the event of this second opinion being favourable to the Claimant, he should be offered placement on the next programme.
The HSE and the IMO should have discussions on the detailed arrangements for obtaining this second opinion, including the selections of the independent person(s) to be consulted.
When this aspect of the case is disposed of, the Union's claim for compensation may be referred back to the Court for a final recommendation.
Signed on behalf of the Labour Court
Kevin Duffy
16th June, 2008______________________
CONChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.