FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE (WEST) - AND - A WORKER (REPRESENTED BY CALLAN TANSEY, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Alleged ongoing unfair treatment and discrimination.
BACKGROUND:
2. The Worker has been employed as a Chef by the HSE (West) at Sligo General Hospital since February, 1994. He was initially appointed as a Chef at the Grade II level.
The Worker claims a) that his pay increments were withheld for five and a half years from 1994-1999, b) that he was unfairly denied access to promotion interviews in 2001, c) that the HSE (West) did not advise him that failure to attend for interview at that time would result in being denied access to future interviews, d) that pressure was exerted on him to sign a 3-month temporary contract of employment in 2003 despite being 9 years in the job, and that his salary was withheld for one month for refusing to sign that contract, e) that when he was offered a permanent contract in May 2005 it was at a lower grade than the position he held as Chef Grade II and f) that he is on the incorrect point of the salary scale. The Worker is seeking compensation and a permanent contract at Senior Chef Level.
The HSE (West) Management acknowledge that a number of issues had arisen during the course of the Worker's employment and that they had been dealt with in an appropriate and timely fashion. Management also contends that the Worker had been paid correctly in line with all Department of Health circulars.
The issues could not be resolved at local level. The Worker referred the claim to the Labour Court on the 5th February, 2007, in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. Labour Court hearings took place on the 20th May, 2008, and the 19th May, 2009, in Sligo, the earliest dates suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that the failure of Management to inform him that 'in order for an employee to be permanent a candidate must compete at an interview following advertisement and interview' placed him at a serious disadvantage in seeking to regularise his position.
2. The Worker contends that every time a difficulty arose with the Employer he brought it to their attention but that the errors were not rectified until after he had received legal advice resulting in Solicitors' letters to the Employer.
MANAGEMENT'S ARGUMENTS:
4. 1.The Worker was offered a permanent post of Cook Grade II in 1999 but declined the offer as it did not suit his personal circumstances at that time. Subsequently a post of Cook Grade I was advertised in October 2001. A condition of application was that you had to be a permanent employee to qualify for interview. The Worker continued to be a temporary employee after declining the offer of a permanent post in 1999 and was not eligible to compete for this post.
2. The Worker continues to be recorded on the HSE personnel and payrollsystem as a temporary employee. He was offered permanent contracts of employment in 1999 and 2005 but to date has failed to formally accept and return a contract.
3.The Worker as an employee of the HSE is contractually obliged to use the official HSE grievance procedure for any grievances or complaints he may have.
RECOMMENDATION:
The Court has considered the submissions of both parties and the supplemental information requested by the Court at the first hearing. Management submitted that the Claimant was offered a permanent position as Cook Grade II in 1999, which he declined.
The Court is satisfied that the Claimant declined to put his name forward for a promotional position at Grade I in 1999 as the rostered hours did not suit him. However, the Court is not satisfied that an offer was made to convert his temporary position at Grade II into a permanent position in 1999. The Court is satisfied that as this did not happen, he consequently lost out on opportunities for advancement to higher grades in subsequent years. In particular, when he applied for a position as Chef Grade 1 in October, 2001, he was informed that only those who were permanent could apply and attend for interview and he was, therefore, deemed ineligible for the post.
Claims were submitted that he was treated less favourably in terms of arrears of pay, stoppage of pay and non-application of increments. The Court is satisfied that on examination of events, when these situations arose, they had universal application and he was not treated any differently to others with similar circumstances. The Court, therefore, does not find in favour of these claims.
As the Court is satisfied that had he been allowed to apply for the position as Chef Grade I in October, 2001, due to his qualifications and level of experience he would have been successful and, therefore, the Court recommends that he should be appointed in a permanent capacity as Chef Grade I with immediate effect and with appropriate retrospective payments back to November, 2001.
The Court recommends the above in full and final settlement of his claims before the Court.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th May, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.