FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGAINISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation r-059027-ir-07/EOS.
BACKGROUND:
2. This dispute concerns the decision of the Employer to reduce the Worker's annual leave from 33 to 30 days. The Employer claims that the Worker was incorrectly given an additional three days' annual leave when she was appointed to the post of Clinic Public Health Nurse in 2004, and that this error had to be corrected when it came to light in 2007. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 2nd September, 2008 the Rights Commissioner issued the following Recommendation:-
- “Having reviewed all of the evidence at the hearing and the submissions into account, I find that the HSE acted improperly in unilaterally reducing, the claimant's leave without any negotiation or dialogue. While acknowledging the HSE’s desire to standardise terms and conditions of employment, the unilateral imposition of any such change is not conducive to harmonious Industrial Relations. The failure to engage in dialogue with the claimant in advance of denying her annual leave allocation was inevitably going to give rise to a grievance.
Supplementary correspondence was furnished by the employer to the L.R.C on the 30th April 2008 and the I.N.O.’s observations on it were received on the 18th June 2008. On reviewing all the evidence, I am satisfied that the claimant submitted for interview and competed for a separate distinct post of Clinic Public Health Nurse and as a consequence I do not accept the employers presentation of events a reassignment. I am further satisfied that the exchanges between the claimant and the Assistance Director of Public Health Nursing [named] generated a legitimate expectation of enhanced annual leave in the event of the claimant being successful in the competition for the post of Clinic Public Health Nurse. I also note that the employer was unable to rely on the contract of employment in their defence as they conceded at the hearing that the claimant was not issued with a Clinic Public Health Nurse contract on her appointment
Accordingly I find the complaint to be well founded and recommend that the claimant have the 33 day annual leave entitlement restored to her with effect from the date it was reduced June 2007.”
- “Having reviewed all of the evidence at the hearing and the submissions into account, I find that the HSE acted improperly in unilaterally reducing, the claimant's leave without any negotiation or dialogue. While acknowledging the HSE’s desire to standardise terms and conditions of employment, the unilateral imposition of any such change is not conducive to harmonious Industrial Relations. The failure to engage in dialogue with the claimant in advance of denying her annual leave allocation was inevitably going to give rise to a grievance.
3. 1. The entitlement to 33 days' annual leave was one of the reasons why the Worker applied for the post ofClinic Public Health Nurse.
2.The annual leave entitlement for the post of Clinic Public Health Nurse is 33 days, and this was clearly communicated to the Worker. It is unreasonable for the Employer to remove this entitlement in a unilateral manner.
3.The Employer acted in bad faith and in contravention of national agreements and Labour Court Recommendation LCR18518.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer acknowledges that the Worker was incorrectly advised by her manager that the post ofClinic Public Health Nurse attracted an additional 3 day's annual leave.
2. It is in recognition of this error that the Employer is not seeking retrospective claw-back of the 12 additional annual leave days which the Worker enjoyed in the four years before this error came to light.
3. Concession of this claim could result in similar claims being taken.
DECISION:
The Court is satisfied that the recommendation of the Rights Commissioner is reasonable having regard to the circumstances of the case.
For the sake of completeness the Court wishes to make it clear that since this matter is before the Court by way of an individual claim, neither the recommendation of the Rights Commissioner nor this decision of the Court has any application beyond the individual claimant
The Rights Commissioner recommendation is affirmed and the employer’s appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
1st March, 2010______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.