FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY MCDOWELL PURCELL SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Reinstatement to the Ballina location and Compensation
BACKGROUND:
2. This case concerns a dispute between the HSE and the worker in relation to her assigned work location. The worker alleges that she accepted managements offer of a temporary position in Ballina Dental Clinic to cover a period of sick leave and that this was subsequently withdrawn by management. The worker further contends that management failed to adequately address subsequent grievances raised by her.
Management's position is that there were several internal matters ongoing within the service that prevented the worker from continuously remaining assigned to the position in question but a suitable vacancy had since arisen and was offered to her.
The worker referred the matter to the Labour Court on 9th February 2010 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on 28th September, 2010.
UNION'S ARGUMENTS:
3 1 The worker was initially offered a temporary post in Ballina to cover another worker's absence on sick leave, which she would still hold as the substantive post holder has not yet returned to work. It is unacceptable that this situation, having operated for a period of time, be unilaterally changed by management.
2 The worker raised her grievances in line with the Organisations grievance procedures, yet management failed to adequatley address the issues raised or follow its own guidelines in relation to attending the third party dispute resolution machinery of the State.
MANAGEMENT'S ARGUMENTS:
4 1 The worker was offered the temporary post which continued until it was no longer possible for her to continue in one location when she was actually assigned to and being paid from another. Management made every attempt to facilitate the worker with her transfer but a suitable permanent post did not become available.
2 Management did not breach its own grievance procedures. It is of the view that the initial stages of the procedure were not exhausted and it was, therefore, inappropriate to attend the Rigths Commissioners Service at that time.
RECOMMENDATION:
It is clear to the Court that by letter dated 8th November 2006 the Claimant was offered a temporary pointing as Dental Surgery Assistant in Ballina Dental Clinic during the continuance of the permanent incumbent’s absence on sick leave. The Claimant accepted this posting on the terms offered. Subsequently the HSE resiled from this offer without consultation with, or explanation to, the Claimant. Thereafter the matter was further aggravated by the employer’s failure, over a prolonged period, to address in any meaningful way the legitimate grievance raised by the Claimant in relation to her treatment. In consequence the Claimant suffered significant additional loss inconvenience and distress.
The Court is fully satisfied that the manner in which this matter was handled fell far short of the standard of fairness and reasonableness which any employee is entitled to expect from his or her employer.
The Court noted that in the course of the hearing the HSE indicated that it is now prepared to appoint the Claimant to a permanent Dental Assistant Post in Mayo PCCC. The Claimant confirmed that she is prepared to accept the post offered.
The Court recommends that the HSE appoint the Claimant to the permanent post of Dental Assistant in Mayo PCCC with effect from 6th October 2010. Having regard to all the circumstances of this case the Court is also satisfied that the Claimant is entitled to significant compensations for the manner in which the employer treated her. The Court recommends that she be paid compensation in the amount of €20,000 in settlement of her claim. €15,000 of this amount should be regarded as being in respect of pecuniary loss and €5,000 in respect of the distress which she suffered.
Signed on behalf of the Labour Court
Kevin Duffy
26th October 2010______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.