FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST JOHN'S HOSPITAL - AND - A WORKER (REPRESENTED BY IRISH NURSES & MIDWIVES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-123205-ir-12/GC.
BACKGROUND:
2. The Claimant is a full-time Clinical Nurse Manager I in the Theatre Department at St. John's Hospital which was founded in 1780 in Limerick. Although the Hospital receives funding from the HSE, it remains apart from the HSE. In February 2012 hospital Management advertised an internal confined competition to fill two posts at the level of Assistant Director of Nursing grade. The Claimant was successful in the competition and was placed second on the panel. However, when the posts became vacant the Hospital Management appointed the first and third members on the panel, bypassing the Claimant. The Hospital Management believes it has acted appropriately and rejects the claim.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 16th November 2012, the Rights Commissioner issued her Recommendation as follows:-
"It is understandable that the claimant feels aggrieved, and the whole process appears convoluted. I note the hospital itself stated that in the normal course of events, had the original advertisement included the wording that "a panel will be formed to fill any full time and part time positions arising during the life of the panel", the situation which subsequently arose might not have occurred. The placement of the claimant as second on the more recent panel naturally led to expectations on her part.
In the circumstances, I recommend that the claimant should be given a compensatory sum of €3,000 and, in the unique circumstances of the case, be appointed to the next ADON vacancy whenever it arises".
On the 23rd November, 2012 the Employer 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 17th April, 2013.
UNION'S ARGUMENTS:
3. 1. The predetermined rules of the competition were breached when an appointment was made outside of the decision of the Interview Board.
2. The Claimant has been treated in a grossly unfair manner by her Employer which has put her promotional opportunities in jeopardy.
EMPLOYER'S ARGUMENTS:
4. 1. The Hospital's cascade system forfillingvacant posts is in place for many years and it gives primacy to the internal transfer or adjustment of contracted hours of existing Employees.
2.The Claimant was placed second on the panel which does not confer any entitlement to an appointment.Two individuals had a claim on one position,Management applied normal and customary rules to the situation.
DECISION:
- The appeal before the Court was made by the Employer of a Rights Commissioner’s Recommendation where the Rights Commissioner found in favour of the Worker’s claim. The Claimant had contended that she was bypassed on a panel for promotion to Assistant Director of Nursing in April 2012.
The Rights Commissioner held that the placement of the Claimant as second on the panel formed for promotion to Assistant Director of Nursing following a competition held in February 2012 gave rise to a certain expectation on her part that she would be promoted into one the vacant positions which arose due to the retirement of all three of the existing Assistant Directors of Nursing at the end of February 2012. The Rights Commissioner recommended that the Claimant should be given a compensatory sum of €3,000 and, in the unique circumstances of the case, she recommended that the Claimant should be appointed to the next Assistant Director of Nursing vacancy whenever it arises.
The Court notes that the Claimant is being trained up to undertake Assistant Director of Nursing duties when cover is required on an acting-up basis.
Having considered the positions of both parties the Court fully accepts that as a result of an omission in an earlier competition it was necessary to hold a second competition when the above vacancies needed to be filled. Furthermore, the Court fully accepts the custom and practice to accept internal transfers from the same grade of existing staff and / or to accept internal transfers from the same grade of existing staff and/or to increase the contracted hours of those existing staff who wish to do so prior to making appointments from a panel. The Union accepted that this was the normal practice within the Hospital.
In such circumstances a unique confluence of events occurred in this case which gave rise to the Claimant not being appointed to one of the three vacant posts despite being placed second on the panel. The Court concurs with the views expressed by the Rights Commissioner, however, it makes one variation to her Recommendation. The Court upholds the recommendation to pay the compensatory sum of €3,000 in the unique circumstances of the case, however, it recommends that the Claimant should be appointed to the next Assistant Director of Nursing vacancy which arises within a period of five years from the date of this Decision.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th May, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.