FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-095859-Ir-10/JC
BACKGROUND:
2. This case is an appeal of Rights Commissioner's Recommendation No: r-095859-Ir-10/JC. The issue concerns a Grade Three Clerical Officer who acted up into a Grade Five (Human Resources) position for a significant period of time but was not regularised in the post. A dispute regarding the initial filling of the Grade Five post had previously been referred to a Rights Commissioner who found that the position be temporarily filled from a previous panel and be permanently filled through normal recruitment practice. The worker was placed into the acting position until the post was permanently filled in December 2009. The Union is claiming that the worker should have been regularised in the post in December 2009 but was not as she was on maternity leave at the time. Management's position is that the permanent post was filled through normal procedures and with the most suitable candidate. The matter was referred to a Rights Commissioner for investigation. His Recommendation issued on the 29th June, 2011 and did not find in favour of the workers claim on the basis that the permanent post had been filled through normal recruitment procedures and in line with the previous recommendation.
On the 21st July 2011, the Union 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 6th June 2012.
UNION'S ARGUMENT:
3 1 The worker was treated very badly by management. She acted up in the position from June 2008 until taking maternity leave in November 2009. While she was on maternity leave the post was filled on a permanent basis but the worker was not consulted in relation to the filling of the post or offered the post on a permanent basis.
MANAGEMENT ARGUMENT:
4 1 Management filled the Grade Five post in line with normal procedures and also in compliance with the previous Rights Commissioner's Recommendation on the issue. The post was filled by a suitable Grade Five from a Human Resources background.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
It appears that the worker in this case was treated differently to other staff in similar circumstances to her at that time. The Court takes the view that this was unintentionally unfair and particularly so as the worker concerned was on maternity leave at that time and was not in a position to make representations on her behalf in like manner to other staff.
Accordingly the Court recommends that management restore the worker concerned to the Acting position she held and that she be dealt with in accordance with the provisions of the relevant agreement on the regularisation of staff in acting positions subsequently concluded with the relevant trade unions.
It is a matter for the parties to address this issue in direct discussions and to give effect to the outcome of those discussions.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
24th October 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.