FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN NORTHEAST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation r-064692-ir-08/RG.
BACKGROUND:
2. The Claimant began working with the Health Board (now the HSE) in 1979 as a Chef. In 2006 a decision was taken to move the Catering Services of St. Brendan's Hospital Grangegorman where the Claimant was based, to St Mary's Hospital Phoenix Park. The services of an Independent Facilitator was utilised in order that a smooth transfer of staff to other centres could be effected with the minimum of disruption. A Catering Reconfiguration Deal was reached which provided each affected Worker with a choice of two new potential locations for redeployment, however the Claimant only received one option, in St. Mary's Hospital and this is now at the nub of the current dispute as the Claimant would prefer to be based at a facility nearer to his home.
The issue involves a claim by the Union. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 3rd October, 2008, the Rights Commissioner issued his recommendation as follows:
"Following discussions with the parties to this dispute, I recommend as follows:-
- The Claimant should be informed within 1 month from the date of this recommendation of the date of his transfer to the Central Mental Hospital, Dundrum.
- The transfer should become effective within a maximum period of 3 months from the date of this recommendation.
- This will give effect to the agreement of 16th October 2006, between the Claimant and the HSE.
UNION'S ARGUMENTS:
3. 1. All the staff affected by the Catering Reconfiguration Deal were offered two alternative locations for consideration with the sole exception of the Claimant.
2. A vacancy exists in the Central Mental Hospital Dundrum, which is currently being covered by agency staff and which the Claimant is agreeable to transfer into.
3. The Claimant is seeking to have the agreement of 16th October, 2006 implemented thus allowing him the option of reducing his daily commute to and from work.
COMPANY'S ARGUMENTS:
4. 1. The Claimant has been placed on the transfer panel and his name entered on that register, as soon as a vacancy arises he will be offered the position.
2. There is no approved position for a Chef Grade II post at the Central Mental Hospital and in the absence of approval it is not possible to manufacture such a post where none exists.
DECISION:
The claim before the Court is an appeal by HSE - Dublin North East of a Rights Commissioner’s Recommendation, which found in favour of the worker and recommendedinter alia,that he should be transferred to The Central Mental Hospital, Dundrum within a maximum of three months.
The Court has carefully considered the written and oral submissions of both parties.
The Court decides that in accordance with the commitment given to the worker on 26th October 2006, HSE - Dublin North East should transfer the worker to a suitable position in the HSE East Coast/HSE South West. The Court decides that HSE - Dublin North East must take whatever steps are necessary to ensure that the worker is transferred within a period of three months from the date of this Decision.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd March, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.