FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH EAST - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal Of A Rights Commissioner's Recommendation R-062463-Ir-08/Joc
BACKGROUND:
2. It was agreed by the Health Service Employees Agency and the Union to introduce the grade of Senior Dental Nurse. The number of posts nationwide was agreed at 86. The upgraded posts were to be filled by way of a confined competition. The worker concerned was placed number one on the overall panel following the competition. The worker had been working on a job sharing basis but wished to return to full time or a 4-day week in the promoted position of Senior Dental Nurse. The Health Service Executive refused this request on the grounds that it was not a new post but a promotion and that there was no funding available to return her to full time hours. The Union argue that the post of Senior Dental Nurse was advertised as a full time post.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 12th September, 2008 the Rights Commissioner issued his recommendation as follows:
" I find the claimant's case to be well founded and recommend that the Respondent take the necessary steps to ensure the claimant takes up the position as advertised."
On the 24th October, 2008 the employer 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 the 20th March, 2009.
UNION'S ARGUMENTS:
3. 1 The Senior Dental Nurse post was advertised as a full time post and there was no instruction in the advertisement or the job specification to contradict this. The worker applied for the full time post in good faith and had openly expressed her willingness to return to work full time to facilitate taking up the senior post if she was successful.
2 The decision not to offer the worker the post on a full time basis is flawed. It is based entirely on artificial restrictions in respect of employment ceilings that ignore the worker's natural rights as an employee of the Health Service Executive.
3 The worker has a right to take up the Senior Dental Nurse post on a full time basis and her status as a job sharer should not mitigate against her in such a discriminatory fashion.
COMPANY'S ARGUMENTS:
4. 1 The Union was aware at all times that the Senior Dental Nurse posts were upgrading of existing posts. The HSE did not receive funding for the upgrades and did not receive approval to increase its staffing ceiling.
2 Circular 01/2008, HSE Employment Control Framework, precludes the HSE from increasing its staffing levels except in certain circumstances.
3. Circular 01/2009 also precludes the HSE South from conceding to increasing the worker's hours as it states that it must ensure that employment levels operate within budget allocated for 2009.
DECISION:
The Court notes that the post at issue was advertised as a full-time position and nothing was indicated to the contrary in the course of the selection process.
In these circumstances the Court is of the view that the findings and recommendation of the Rights Commissioner are reasonable and should be upheld.
However, the Court notes that in her letter to the Principal Dental Officer dated 6th September 2007, the claimant expressed a willingness to work four days per week. The Court believes that the post should now be offered to the Claimant on that basis.
The Rights Commissioner's recommendation is modified accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
11th May, 2009______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.