AD1296

FULL RECOMMENDATION

CD/11/717

APPEAL DECISIONNO.AD1296

(r-104834-ir-11/JOC)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

HSE SOUTH

- AND -

A WORKER
(REPRESENTED BY IRISH NURSES' & MIDWIVES' ORGANISATION)

DIVISION :

Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal of Recommendation of a Rights Commissioner r-104834-ir-11/JOC.

BACKGROUND:

2. The Claimant is a Senior Staff Nurse employed a St Finbarr's hospital Cork with 33 years of service. An Incentivised Scheme of Early Retirement (ISER) was announced by the Minister of Finance in the Supplementary Budget Statement of 7th April 2009. The Claimant applied to be considered for the ISER but was rejected, she appealed the decision and her case was reviewed but was again rejected. The Claimant is aware of other Nurses with more specialised skills than her that were given access to the ISER. Management submits that the onus is on them to maintain a balanced skill-mix among Nurses in order that a proper service is delivered to patients.

The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 13th October 2011, the Rights Commissioner issued his Recommendation as follows:-

- (a)"The claimant's application was fairly treated along with her appeal for the ISER Scheme and I uphold the respondent's position on this.
(b) In the context of the exceptional circumstances presented by the claimant at the Rights Commissioner hearing, I am recommending that the respondent further review the application of the claimant within 8 weeks from the date of this recommendation.

(c) This recommendation shall be without precedent and if the claimants application is successful following this review, this recommendation shall not be regarded or used in any other case that is or may arise between the parties going forward".

On the 22nd November 2011 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 2nd November, 2012.

UNION'S ARGUMENTS:

3. 1. The Claimant's first application was initially refused but she was given an expectation from her Line Manager that the review of 'rejected cases' would produce a favourable result for her on the nextoccasion.

2 The Claimant has experience in elder care, a speciality which is commonly found in a large cohort of nursing staff and it is therefore unfathomable to think that this skill is not readily available to HSE South.

EMPLOYER'S ARGUMENTS:

4. 1.The ISER Scheme is in line with the 2009 Employment Control Framework for the Public Health Service so every effort must be undertaken by Management so as not to undermine essential service provision and also to ensure the retention of appropriate and balanced set of skills.

2. The Claimant has been informed of the rationale for the decision to refuse her application and her application for the ISER has been processed in a fair and transparent manner by HSE South.

DECISION:

The Court has carefully considered the submissions of both parties to this dispute.

The Appellant applied to participate in the Incentivised Early Retirement Scheme that commenced in August 2009. Her application was refused. Management justified its decision to refuse her application in the following terms

I regret to inform you that your application has been refused for the following reason(s):
- •Safeguarding organisational capacity and service delivery
  - And
  •To ensure the retention of appropriate and balanced set of skills

She, to no avail, appealed this decision in accordance with the provisions of the scheme.

She appealed the internal decision to the Rights Commissioner who upheld management’s position. She appealed that decision to this Court.

The Court notes that the Circular that sets out the terms of the Scheme provides: -

The purpose of the ISER in the public health sector is to facilitate a permanent, structural reduction in the numbers of staff employed along with an associated restructuring of organisation and operations, in as timely a manner as possible and in line with the 2009 Employment Control Framework in the Public Health Sector.

It goes on to state

While the reduction in numbers achieved under the ISER is intended to contribute significant and ongoing savings to the Exchequer, this must be done in a way that does not undermine essential service provision and
Because staff who retire under the scheme will not be replaced (save in very exceptional cases), the HSE must pay particular attention, when considering applications, to the scope that exists within the organisation for reorganising and restructuring work in order to minimise the impact on essential service delivery. Staff co-operation and flexibility in that regard is essential. Equally, the HSE must, as far as possible, facilitate the efficient and effective implementation of the scheme in order to meet the Government’s policy objectives.

It further provides

While nothing in this circular should be construed as conferring an absolute right or entitlement on staff members to avail of the ISER, in general, the HSE will be expected to facilitate the early release of staff, with priority being given to the employees with the longest service, other things being equal.

It is clear from the foregoing that the intention of the Scheme was to reduce numbers whilst maintaining services through redeployment and restructuring. It is also clear that staff that apply to participate in the scheme are entitled to have their application considered expeditiously, be allowed all other things being equal to participate in the Scheme unless the work they perform cannot be reallocated or restructured and be given a comprehensive and credible reason if their applications are refused.

On examining the information, evidence, submissions and documents provided to it the Court finds that the HSE has not fulfilled its obligations in this regard. The Appellant had long service, was doing a routine nursing duty in a care of the elderly facility and there are no particular reasons submitted to the Court as to why the Complainant could not have been replaced through the redeployment of other staff within the greater HSE region. The Court also notes that other staff members in other Hospitals and facilities were allowed participate in the ISER with apparent ease.

The Court therefore decides that in the particular circumstances of this case and without precedent the Complainant was unreasonably refused access to the ISER and Management should now take whatever steps are necessary to have her included in the Scheme without further delay.

The Court so decides.

Signed on behalf of the Labour Court

Brendan Hayes
3rd December, 2012______________________
JFDeputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.