FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-111744-ir-11-JT
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner's Recommendation No: r-111744-ir-11-JT. The issue concerns an employee of the HSE who was unsuccessful in obtaining an acting up post in 2003 and again in 2008. The worker contends that management applied different practices for the filling of the posts on both occasions which were at variance with its own procedures.
Management's position is that the 2003 arrangements were governed by the policies that existed in the Eastern Regional Health Authority prior to the formation of the Health Service Executive. In relation to the 2008 acting up position management contend it was initially for a short period of time and the procedures used for filling it were deemed appropriate at the time.
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on 16th March 2012. The Rights Commissioner accepted that by management using different practices the worker had a legitimate grievance but that as a collective agreement was now in place on the filling of posts, the matter has been taken over by events.
On the 26th March 2012, the worker 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 19th June 2012
WORKER'S ARGUMENT:
3 1 The worker has suffered as a result of not being successful in obtaining experience in a senior role. Management's actions in departing from its own procedures have affected the worker's career progression. As a result the worker is justified in seeking appropriate compensation.
MANAGEMENT'S ARGUMENT:
4 1 Management acted in good faith at all times. It was not responsible for previous policies prior to the formation of the HSE and the filling of the post in 2008 was temporary in nature and management acted on that basis.
DECISION:
The matter before the Court concerns the worker’s appeal of a Rights Commissioner’s Recommendation, concerning his claim that in two instances the HSE had departed from its policy on the filling of acting-up posts. The Rights Commissioner accepted that the use of different practices in the filling of acting-up posts lead to the worker’s grievance, however he concluded that a collective agreement with the unions on the filling of posts had overtaken events since.
The Appellant outlined the events which lead to the filling of an acting-up post in 2003 for which he was not successful and the filling of another acting-up post in 2008 for which he was not considered, despite his seniority within the Department.
The Court notes that the Appellant did not raise a grievance in relation to the filling of the post in 2003 until 2008 i.e. five years after the first acting-up post and eleven months after the filling of the second acting-up post. In such circumstances the Appellant stated that the details from 2003 were referred to in order to highlight the contrast in the procedures adopted by management.
The Court notes that the Eastern Regional Health Authority, which pre-dated the formation of HSE in 2005 had a policy on the filling of acting-up post, this policy was dated 1stJuly 2002. The Court accepts that the procedures adopted by management in 2003 when filling the acting-up post at the time did not adhere to those specified in the 2002 policy.
With regard to the filling of the acting-up post in 2008, while the procedures adopted on this occasion were different again, the Appellant accepted that at the time management acted in good faith as the acting-up post on this occasion was anticipated to be for a short duration. However, it was accepted that events overtook matters and due to national restrictions including the Government moratorium, recruitment freeze etc., such initial short term arrangements have continued. This protraction of the acting-up position gave rise to the Appellant’s grievance in relation to the filling of the post in 2008.
In all the circumstances of this case the Court concurs with the Rights Commissioner and accepts that the use of different practices in the filling of acting-up posts has led to the Appellant’s grievance. However, as the 2008 filling of the acting-up post was handled in a reasonable manner the Court does not recommend in favour of the Appellant’s claim for a compensatory award. Furthermore, the Court notes that there is no collective agreement in place on this issue but the matter is the subject of industrial relations discussions currently being held at national level.
The Court upholds the Rights Commissioner’s Recommendation accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th July 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.