FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY INMO) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Recommendation R-146860-IR-JT.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Recommendation R-146860-IR-JT. The dispute relates specifically to the Worker's claim that she has been treated in an inequitable manner by her Employer as a result of the Employer's alleged refusal to regularise her additional part-time hours of work to Clinical Nurse Manager 1 (CNM1) level. It is the Employer's contention that the Worker is not entitled to have her position regularised under the terms of the Haddington Road Agreement (HRA). The matter was referred to a Rights Commissioner for investigation and recommendation. On the 13th August, 2015 the Rights Commissioner issued his Recommendation as follows:
"I have considered the submissions of both parties. The HRA regularised the position of staff in an "acting" role of CNM1. The Claimant is in a part-time position as a CNM1 and therefore would not qualify. The fact that this was a part-timer role was confirmed at her request in 2006. It is within the Respondent's right not to replace a full time CNM1 role in the current situation.
I do not find the claim well founded and it fails".
On the 18th August, 2015 the Union on behalf of 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 15th October, 2015.
UNION'S ARGUMENTS:
3. 1. The Worker has fully carried out the role of CNM1 since 2009.
2. It is the Worker's claim that she has worked for 31 hours per week as a CNM1 and is seeking regularisation in recognition of this.
3. The Worker asserts that she has been treated unreasonably by her Employer as a result of its refusal to allow her position to be regularised to CNM1.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker holds a permanent contract as a Senior Staff nurse and carries out part-time hours of work as a CNM1.
2. The Employer contends that in accordance with the terms of HSE HR Circular 017/2013 the Worker is not entitled to regularisation as she is not in an "acting" CNM1 position.
DECISION:
The Claimant has been employed at St. Columcille’s Hospital, Loughlinstown, Co. Dublin since 1990. In 2006, she agreed a reduction in her hours to 31 hours per week. In 2007, she was promoted to Clinical Nurse Manager 1 (CNM1) grade on a job-sharing basis while continuing to work the remainder of her contractual hours (11.5) at Staff Nurse level.
The Claimant’s case is that in 2009 she assumed the CNM1 role previously performed by a colleague who retired at that time. It is submitted on her behalf that she has been performing the duties associated with that role since then. She is now seeking to have her 11.5 hours at Staff Nurse level regularised as a CNM1 level post pursuant to section 6 of HSE Circular 017/2013. The Claimant is also seeking compensation for what she has characterised as “the obstructive and unreasonable behaviour of her employer in denying her access to the regularisation process for her additional part-time CNM1 hours.”
The Respondent’s position is that the Claimant does not meet the criteria for regularisation specified in HSE Circular 017/2013. The Respondent does not accept that Claimant has been in an acting CNM1 position: she has, at all times since her promotion to CNM1 level in 2007, performed the latter role on a job-sharing basis in conjunction with performing at Senior Staff Nurse level for 11.5 hours per week. The Respondent does not accept that it has at any stage denied the Claimant access to the regularisation process.
Circular
HSE Circular 017/2013 (regarding the regularisation of acting posts in conjunction with the introduction of new arrangements for the short term filling of posts and the re-introduction of Senior Staff Nurse positions) issued on 15 October 2013 reflected an agreement reached between the HSE and various trade unions and staff representative bodies following discussions that had taken place under the auspices of the Haddington Road Agreement. The Circular provided for an agreed methodology for the filling of existing vacancies, subject to certain conditions being met.
As of 17 July 2015, following agreement with the relevant trade unions and under the auspices of the National Joint Council for the Health Services, the Respondent has initiated an appeal procedure in relation to HSE Circular 017/2013. The appeal procedure has commenced and is being conducted by Mr John Doherty. The agreed window of opportunity for employees to make an appeal as part of this process opened in July 2015 and closed in August 2015. The Court was informed by the Claimant that she has not availed of the appeals procedure.
Recommendation
The Court recommends that the Claimant should participate in the appeals procedure outlined above. The Court received a firm reassurance from the Respondent that the Claimant would not be prevented from availing herself of the appeals procedure notwithstanding the closure of the period for applications in August 2015.
The Court finds no basis to support the second aspect of the claim before it. This aspect of the claim therefore fails.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
29th October 2015______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.