FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation r-082238-ir-09/GC
BACKGROUND:
2. This case concerns an appeal by the Union of Rights Commissioner's Recommendation No: r-082238-ir-09/GC. The issue concerns a worker employed by the HSE who was successful in being placed 3rd on a Grade VI National Hospitals Office (NHO) panel following a competition but ultimately was not appointed to the post.
Management's position is that there were three separate panels and that the worker had applied for only one and therefore could only be placed on that panel. It claims that she was placed on the NHO panel but that no vacancy had arisen in that area before the panel expired. Management further contend that the impugned post was actually a corporate services post and had been correctly filled from the "Corporate Services Panel."
The Union's position is that the worker was entitled to be appointed to a Grade VI post on the basis that the worker placed 1st had already been appointed and the 2nd placed worker was already acting up within her own area and would not have taken up the post. The Union does not accept that the other appointment was correctly assigned from the Corporate Services panel.
The matter was referred to a Rights Commissioner for investigation. In her recommendation the Rights Commissioner stated it was understandable that the worker felt aggrieved at not being appointed to a Grade VI position after two appointments had been made to the National Hospitals Office, one from the "Corporate Services" panel assenior administrative assistant to the director of the NHO and the other from the "Shared Services" panel "on loan" to the NHO. However, the Rights Commissioner did not find in favour of the claim on the basis that the worker who was placed 2nd on the NHO panel would have been entitled to a position before her.
UNION'S ARGUMENTS:
3 1 The worker was placed 3rd on the NHO panel for a Grade VI position. There were three panels in operation and two other workers were incorrectly appointed from those panels into the National Hospital Offices area.
2In circumstances where the 1st placed worker had already been appointed to a post, and the 2nd placed worker was acting up within her own area and would not have taken up the offer, the claimant in this case should have been appointed to a Grade VI position within the NHO.
COMPANY'S ARGUMENTS:
4 1The claimant in this case was placed on a panel for a position in the National Hospitals Office. As there were no appropriate vacancies within that area during the lifetime of the panel the worker could not have been appointed to the Grade VI post.
2 The appointment of the worker from the Corporate Services panel to the postof senior administrative assistant to the director of the National Hospitals Office was a corporate appointment and was made from the appropriate panel. Another worker was also appropriately appointed from the shared services panel and was "on loan" to the NHO.
DECISION:
The matter before the Court concerns an appeal by the Union on behalf of one employee, of a Rights Commissioner’s recommendation which found against her claim that HSE had denied her access to promotion. The Appellant told the Court that she was placed third on the HSE’s National Hospitals Office Panel following a competition held in 2007 for Grade VI promotional posts. However, when a vacancy came up in the National Hospitals Office in July 2008, a candidate placed 23rd on a separate panel was successful.
In 2006/07 three competitions were held for forthcoming Grade VI posts which may arise. As a result of these competitions three panels were set up – the National Hospitals Office Panel Ref: HRSS/127/07; the Corporate Panel Ref: NSS/103/06 and the Shared Services Panel Ref: NSS/292/06.
The Court notes that the candidate placed first on the National Hospitals Office Panel was appointed to a Grade VI post on 6th May 2008.
The HSE stated that the position which became available in July 2008 was a Grade VI position within the Office of the Director of the National Hospitals Office based in the HSE’s Headquarters in Dr. Steeven’s Hospital and as such a candidate was drawn not from the National Hospitals Office Panel but from the Corporate Panel to fill the vacant post.
In any event the HSE maintained that as the Appellant was placed third on the panel she had no expectation of being placed in the Grade VI post in question.
The Union submitted that the appointment should have been made from the National Hospitals Office Panel, in which case as the second placed person on the panel had secured a long term acting up position at Grade VI, the Appellant should have been offered the post in the National Hospitals Office.
HSE - National Hospitals Office – Corporate HRSS/127/07
The Court notes that the advertisement for the HSE - National Hospitals Office – Corporate Panel HRSS/127/07 competition gave the Location of the Post, and the Organisation Area as :
- “HSE National Hospitals Office – Corporate (Dublin Area)”.
The job specification stated that the Purpose of the Post was:
- “To provide administrative support in the development and implementation of policies and strategies of the HSE”.
Included in the list of Principal Duties and Responsibilities :
- “To assist planning, organising, directing and coordinating activities to ensure the specific unit, in which the post is based, fulfils its missions and objectives.”
- “To assist secure and maintain productive relationships with key personnel in hospital management, networks, NHO directorates, wider HSE directorates and external agencies.”
HSE - Corporate Ref: NSS/103/06
The advertisement for the HSE - Corporate Panel Ref: NSS/103/06 gave the Location of the Post as :
- “HSE – Corporate Headquarters, Parkgate Street, Dublin 8”
The job specification stated that the Purpose of the Post was:
- “To provide senior administrative support within HSE Corporate headquarters in the development and implementation of policies and strategies of the HSE”.
The Objectives of the Post are:
- “To assist senior management in the directorate in delivering the strategic objectives of the directorate.”
- “To assist senior management in the directorate in delivering the strategic objectives of the directorate.”
“Planning of activities to ensure achievement of service plan.”
“Develop positive working relationships with other HSE directorate.”
The advertisement for the HSE - National Shared Services Panel Ref: NSS/292/06 gave the Location of the Post as :
- “HSE – National Shared Services, posts may become available in the following areas: Finance; Payroll, Employee Services; Procurement and Materials Management; National Shared Services Project Office”
The job specification stated that the Purpose of the Post was:
- “To provide senior administrative support within National Shared Services in the development and implementation of its services”.
The Objectives of the Post are:
- “To assist senior management in the directorate in delivering the strategic objectives of the directorate.”
- “To assist senior management in the directorate in delivering the strategic objectives of the directorate.”
“Planning of activities to ensure achievement of service plan.”
“Develop positive working relationships with other HSE directorate.”
The Court is of that view that the advertisements lacked clarity resulting in a difficulty in differentiating between the Grade VI posts in HSE - National Hospital Office and HSE - Corporate. It was therefore, understandable that the Appellant had an expectation that she was eligible when a post came available at Grade VI in HSE Corporate.
This clearly caused confusion and disappointment for her. However, the Court is satisfied that she had no genuine expectation of being placed in the post, due to her position at third place on the panel.
The Court recommends as follows:-
1. The HSE should review all documentation associated with the advertising and filling of posts to ensure that prospective applicants have clear and comprehensive information available to them.
2. While the Appellant would not have been eligible for the HSE Corporate post the response she received to her enquiries subsequent to the filling of the post was less than satisfactory and therefore the Court recommends that she merits a once off payment of €4,000.00.
Accordingly, the Appellant’s appeal is upheld and the Rights Commissioner's Recommendation is overturned.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd December 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.