FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN MID - LEINSTER IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation R-119001-IR-11/JW.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal ofRights Commissioner's Recommendation R-119001-IR-11/JW.The dispute refers specifically to the Worker's claim for her post to be regularised in addition to the retrospective payment of the financial losses she has incurred as a result of the Employer's failure to regularise her post. The Worker commenced employment as a Multi-Task Attendant with the Employer in March, 1986. In January 2007, the Claimant applied for the post of Clerical Officer. The Claimant was successful in her application and was appointed to the post in March, 2007. The Claimant has remained in this position since that time. At the time of her appointment to the Clerical Officer role the Claimant was informed that the position had not yet been regularised, however, the Employer advised the Claimant that the process was underway and would be completed in the very near future. After several requests made to the Employer, the Claimant's position was not regularised despite the fact that she continued to carry out Clerical Officer duties whilst remaining on a Multi-Task Attendant's salary.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd April, 2012 the Rights Commissioner issued his Recommendation as follows:
"I find that I am unable to recommend in favour of the claimant. However, since the claimant has operated in a clerical position since March 2007, the parties should meet to discuss the claimant's position with a view to finding a suitable accommodation or a settlement agreement with her".
On the 15th May, 2012 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 25th September, 2012.
UNION'S ARGUMENTS:
3. 1. The Claimant has carried out the Clerical Officer role since 2007 while continuing to be remunerated as a Multi-Task Attendant.
2. The Claimant has made several requests to the Employer to have her post regularised, however, the Employer has failed to do so.
3. The Claimant has suffered a significant financial loss as a result of the Employer's failure to regularise her position.
EMPLOYER'S ARGUMENTS:
4. 1. The Clerical Officer position currently filled by the Claimant was incorrectly advertised and was done so without sanction from Senior Management within the HSE. There is currently no sanction for this post to be regularised.
2. The Employer is requesting that the Claimant return to her original post of Multi-Task Attendant as there is a business requirement for her to do so.
3. The Employer maintains that the Claimant's claim is cost-increasing and as a result is precluded under the terms of the Public Service Agreement (2010-2014).
DECISION:
The matter before the Court concerns the worker’s appeal of a Rights Commissioner’s Recommendation which found against her claim for regularisation of her post as a Clerical Officer. SIPTU on behalf of the worker appealed the Rights Commissioner’s Recommendation.
The Appellant commenced employment in July 1986 by St. Vincent’s Hospital, Mountmellick. In February 1990 she was appointed as a Multi- Task Attendant. Having successfully applied for a position as a Clerical Officer which was advertised internally, the Appellant commenced carrying out clerical dutiesin March 2007, and she continues to be paid as a Multi-Task Attendant.
HSE submitted to the Court that it has not been possible to regularise the post as the filling of the post in 2007 was carried out without the proper sanctions or approval and was completely at variance with the principles set out within the Public Service Management (Recruitment and Appointments) Act, 2004.
IMPACT presented a submission to the Court as an interested party to the proceedings. It disputes HSE’s right to regularise the disputed post as a Clerical Post as to do so would violate agreements and procedures agreed between all interested parties which stipulate how support staff will be recruited to Clerical/Administrative positions with the Health Service and Local Authorities.
Having considered the submissions of both parties and the presentation made by IMPACT, the Court must have full regard to the integrity and inviolability of the prevailing agreements and established procedures agreed between the parties and consequently it cannot recommend in favour of SIPTU’s claim.
However, due to the very particular circumstances of this case and to the Appellant’s medical condition which currently renders her unfit to carry out Multi-Task Attendant duties, the Court upholds the Rights Commissioner’s Recommendation. HSE stated that it is prepared to permit the Appellant continue in her current role until such time as she is deemed medically fit to carry out the role of a Multi-Task Attendant.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st October 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.