FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE DUBLIN/NORTH EAST - AND - A WORKER (REPRESENTED BY MARGUERITE BOLGER B.L.) INSTRUCTED BY O'MARA GERAGHTY MCCOURT SOLICITORS DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioner Recommendation R-051284-Ir-07/Mmg
BACKGROUND:
2. This case concerns a dispute between the Health Service Executive (HSE) Dublin North East and the worker in relation to the alleged failure of the HSE to appoint the claimant to the post of Senior Pracitioner within the Social Work department of Our Lady of Lourdes Hospital, Drogheda. The claimant was interviewed and placed on a panel for the vacant position but was not appointed. It is claimed that she was not appointed because complaints had been made against her and she herself had raised issues of concern in relation to other staff members. Management's position is that the panel expired prior to the filling of the post but there were ongoing difficulties between the claimant and other staff members that required investigation. Management decided that due to the difficulties, they would not fill the post until the investigations were concluded and relations were improved wthin the social work department.
The matter was referred to a Rights Commissioner for investigation and Recommendation. His Recommendation issued on 5th November, 2008 and found that management had the right not to fill the post if it was deemed appropriate given the difficulties that existed at the time. The Rights Commissioner also recommended that as the panel has now expired, any future vacancy should be filled by competition.
On the 21st November, 2008 the worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 23rd January, 2009.
WORKER'S ARGUMENTS:
3 1 The worker was placed on a panel for the position and was entitled to be appointed to the post. It is unacceptable that management formed a predjudiced and biased view of the worker on the basis of allegations that she did not know about and was not afforded an opportunity to comment on.
2 The worker is being penalised on the basis that management formed a view on the appointment of the worker without allowing her to respond to alleged complaints made against her.
3 A complaint made by the worker in relation to a mid probationary reporting issue was substantiated and it was deemed that an extension of probation was not warranted. The worker, therefore, had an entitlement to be appointed to the post in question on completion of her probation.
MANAGEMENT'S ARGUMENTS:
4 1 Management had a right not to fill the post if it deemed such action appropriate. Given the difficulties that existed in the Social Work department at the time, Management did not fill the post, nor has the post been filled since.
2 During the course of investigations into the multiple issues prevailing at the time, other staff members cited the worker as the main cause of difficulties within the section. Management did not feel it was appropriate to appoint the worker to the senior post given the problems that existed.
3 As the original panel has expired, any future filling of vacancies will be carried out by way of competition. The worker does not have a right, after the panel has expired, to be appointed to the post.
DECISION:
The Court has carefully evaluated the considerable volume of oral and written submissions put to it by the parties.
The Court, in all the circumstances, concurs with the Recommendation of the Rights Commissioner in regard to the filling of the post in question and endorses it in full.
The Court is, however, satisfied that the procedures adapted by the HSE and the delays in dealing with the matter created and prolonged an expectation on the part of the claimant that she would eventually be appointed to the position, despite the lifespan of the panel having expired. The Court, therefore additionally finds that the claimant should receive compensation of €5000.
The Court so decides and varies the Recommendation of the Rights Commissioner accordingly.
Signed on behalf of the Labour Court
Raymond McGee
19th February 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.