FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioners Recommendation r-127985-Ir-12/EH.
BACKGROUND:
2. The case concerns an appeal by the Union of Rights Commissioners Recommendation r-127985-ir-12-EH. The issue concerns a nurse specialist currently on a reduced working week who is seeking to return to full time hours.The Union's position is that the period of reduced working hours was temporary in nature with a right to return to full time work when desired.
Management's position is that the worker was facilitated with reduced hours under the Flexible Working Agreement, but that no automatic right exists to return to full time hours on the basis of costs involved and employment ceilings within the Service.
The dispute was referred to a Rights Commissioner for investigation. A Recommendation issued on the 8th May 2013 and did not find in favour of the workers claim on the basis that the employer had applied the term of the Flexible Working Agreement and was bound by the terms of the moratorium with respect to granting additional hours of work.
On the 17th June 2013 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 27th August 2013.
UNION'S ARGUMENTS:
3. 1.The worker is seeking a return to her substantive post and hours of work. She is not seeking additional hours of work as is being claimed by Management as her contract provides for full time hours.
2. The moratorium on public service recruitment is irrelevant in this case. The agreed period of reduced hours had elapsed and she has a fundamental right to return to her contractual hours.
COMPANY'S ARGUMENTS:
4. 1.The Flexible Working Agreement at Paragraph II provides a right to return to work in circumstances where costs are not increased or where hours can be reduced in other areas to enable the worker to return to full time hours. There is no automatic right to a return to full time hours.
2. The claim if conceded would be cost increasing which is at variance with the terms of the public service moratorium on recruitment and promotion and would also lead to repercussive claims throughout the Service.
DECISION:
This is an appeal by the Union on behalf of an employee of a Rights Commissioner’s Recommendation which found against her claim for restoration of wholetime hours following a period of reduced working hours. The Appellant is employed as a Clinical Nurse Specialist at CNM II level working in Addiction Services. In December 2009 she applied for and was granted reduced working hours from 15thJanuary 2010 for a period of one year and this was followed by an application to extend this arrangement for a further year. This was also granted. In July 2012 the Appellant sought to return to wholetime hours.
HSE Management stated that it was not possible to restore the Appellant to whole time hours as no such hours were available in her grade and furthermore such an action was prohibited by the Moratorium on Recruitment and Promotions in the Public Service. HSE Management stated that its refusal was in line with the conditions governing flexible working arrangements as outlined in HSE Circular dated 27thNovember 2000 which states:
- “Where individuals currently employed on a wholetime basis are granted reduced working hours they will retain a right to return to wholetime working subject to the availability of such hours in their grade with their employer.”
Having considered all aspects of the appeal the Court notes that the Appellant’s substantive position is a wholetime position as Clinical Nurse Specialist. The Court is satisfied that the Appellant’s application for reduced hours made reference to HSE Circular dated 27thNovember 2000 and the conditions governing return to wholetime hours. The Court is of the view that an exploration of whether or not there is a business case for the hours in question in line with the normal criteria applicable should be conducted as soon as possible. In the event that this provides a resolution to the appeal before the Court, that concludes the matter. If, however, such a business need is not identified then the Court is of the view that the Appellant still has a future contingent expectation of retaining a right to wholetime hours whether in Addiction Services or elsewhere within the HSE.
Therefore, the Court varies the Decision of the Rights Commissioner's Recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th September, 2013______________________
AH.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.