FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation r-076613-ir-09.
BACKGROUND:
2. The Worker is a Staff Nurse who has been performing the duties of a FETAC course facilitator, in an acting-CNM II capacity, since 2005. This dispute concerns the Worker's claim that she should now be appointed CNM II on a permanent basis. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 28th September, 2009 the Rights Commissioner issued the following Recommendation:-
- “I am not in a position, having regard to circular letter 15/2009, to recommend concession of the claim at this time despite the inordinate amount of time the claimant has acted in position.
However, in line with the spirit of the provisions of s.4 Promotions of the circular letter and assuming retention of he post and its requirements after 2010, I recommend that the claimant's acting position be regularised at CNM II from 1st January 2011 onwards”.
- “I am not in a position, having regard to circular letter 15/2009, to recommend concession of the claim at this time despite the inordinate amount of time the claimant has acted in position.
3. 1.TheWorker has been performing this role since 2005.
2.Therole is a fundamental and valued part of a multidisciplinary team.
3.It is reasonable for the Worker to expect that after five years her position should be regularised.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker is a dedicated and valued member of staff.
2. The Employer is precluded fom conceeding this claim under the provisions of the moratorium in the health services.
DECISION:
In his recommendation the Rights commissioner rightly observed that he could not recommend that the employer act contrary to the HSE circular 015/2009, setting out the Government's decision to apply a moratorium on promotions in the public service. The Court concurs with that view.
It is noted that the HSE accepts that the Claimant is providing a necessary service and is doing so to the highest standard. It is constrained, however, by the moratorium and the absence of any assurance that funding will continue to be available for the post.
The Rights Commissioner recommended that the dispute be resolved within the parameters of clause 4 of the HSE circular. That clause provides, in effect, that during the continence of the moratorium promotional posts may be filled only with the consent of the Ministers for Health and Children and Finance. As the moratorium is continuing the only practical step which the HSE can take to give effect to the recommendation of the Rights Commissioner is to apply to the relevant Ministers for sanction to fill the post on a permanent basis and to obtain a commitment to the funding of the post. While the HSE believes that sanction will not be given no formal application to regularise the claimant's position has been made pursuant to the relevant provision of the circular.
In the Court's view the HSE should now proceed to apply for sanction to appoint the Claimant to a permanent post at CNM II level and for the necessary funding to maintain that post in accordance with the recommendation of the Rights Commissioner. If a positive response is received on both issues the HSE should implement the Recommendation of the Rights Commissioner.
The HSE should also consider the scope available to it to fill the post in reliance on clause 6 of the circular.
With this modification the Recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
4th March, 2011______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.