FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - IRISH NURSES AND MIDWIVES ORGANISATION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Recommendation No's r-067057-ir-08/SR & r-067058-ir-08/SR
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner Recommendation No's r-067057-ir-08/SR & r-067058-ir-08/SR. The issue concerns two members of the Nursing staff of Sacred Heart Hospital Roscommon who were successful in applying for Clinical Nurse Manager II (CNMII) posts to cover night duty in the hospital but were not appointed to the posts.
Management's position is that although the posts were advserised and interviews were conducted, the posts were put on hold due to financial difficulties within the organisation and subsequently the moratorium on promotion within the public service.
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on 9th January, 2009. He recommended that, on the basis of a letter of offer and the Nurses subsequent acceptance of the posts, that a contract existed between the parties and should be honoured. He also recommended that any differences in pay between the original post and the CNMII position be applied retrospectively to 1st February, 2007.
On 4th February, 2009 the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 10th March, 2010 in Galway.
MANAGEMENT'S ARGUMENTS:
4 1 The posts were advertised, there was a competition for the two available posts and the successful applicants were notified. There was no start date confirmed and ultimately the posts were not filled due to cost containment measures introduced within the HSE. There were no contracts issued to the workers and the worsening financial situation meant that the organisation could not complete the process.
UNION'S ARGUMENTS:
3 1 The workers applied for the posts and were successful in their applications. Letters of offer were issued by management and were accepted. It is disengenous of management not to follow up on the contractual arrangement between the parties by claiming the posts were on hold due to a lack of financial resources.
DECISION:
The matter before the Court concerns an appeal by the employer of a Rights Commissioner’s Recommendation, which found in favour of the claimants’ claim and concluded that the employer had refused to honour or implement the terms of a valid contract with both claimants following their successful application for CNM II positions within the Hospital. The Rights Commissioner’s recommended that the employer pay the claimants any difference in the rate of remuneration between that of CNMII and their current grade, retrospective to 1st February 2007.
The employer appealed the Recommendation stating on the grounds that it has no reserves to implement the Recommendation at this time and in any event it held that the recruitment process has not been finalised and contracts had not been issued to the claimants concerned.
Having considered the positions of both parties, the Court concurs with the findings of the Rights Commissioner and upholds his recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th March 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.