FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY PNA) DIVISION : Chairman: Mr Foley Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Recommendation No r-159813-ir-15/SR
BACKGROUND:
2. This dispute concerns the Workers claim that Management failed to offer him the position of Assistant Director of Nursing, despite successfully being interviewed for the role. This dispute was referred to an Adjudication Officer for investigation and recommendation. On the 29th February, 2016 the Adjudication Officer issued the following Recommendation:-
- "I do not see merit in the claim; it is rejected and is not upheld by me."
On the 7th April, 2016 the Employee appealed the Adjudication Officer'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 31st May, 2016.
UNION'S ARGUMENTS:
1. The Worker successfully interviewed for the position of Assistant Director of Nursing. All those above him on the panel were appointed.
2. Panels have been active and utilised which were over 3 years old.
3. The Worker should have been offered the position of ADON following a Labour Court recommendation in June 2013. This recommendation was within the 3 year timeline.
EMPLOYER'S ARGUMENTS:
1. The Public Appointments Service (PAS) organised and held interviews on behalf of the HSE. PAS do not retain panels for more than three years. The HSE were not in a position to extend a panel set up by PAS.
2. The approval to fill the vacant ADON position did not arise until four years after the PAS panel was formed.
3. Interviews were held for the post again in October 2015. The Worker did not apply for the position.
DECISION:
The Court has given very careful consideration to the written and oral submissions of the parties.
The history of this matter is characterised by a series of delays which are, by any reasonable standard, extraordinary. The claimant in this case was appointed to a panel for appointment to the position of Assistant Director of Nursing (ADON) in December 2010. A vacancy arose in early 2013 at ADON level which was filled on an acting basis at that time. Internal mechanisms did not approve the permanent filling of that vacancy until over a year later in April 2014. At that point the claimant was informed that the panel on which he was placed had expired. The NRS finally initiated a process which resulted in interviews for the position of ADON taking place in October 2015.
The Court understands that the policy objective of the NRS is to achieve a position whereby panels do not have a lifetime beyond three years. The Court believes that such a policy commitment should be accompanied by clear communication when panels are being formed regarding their duration and an efficient process to decide on the filling of vacancies when they arise.
The Court understands how the delays which have arisen in this case have given rise to frustration for the claimant. Nevertheless the Court’s consideration of the matter must be informed by a pragmatic assessment of all the circumstances.
The claimant had the option to apply for an ADON position on an acting basis when it arose in early 2013. He chose not to do so. The claimant had an opportunity to apply for appointment to an ADON position in 2015 when a competition was held to fill two permanent vacancies. He chose not to do so.
The Court was advised that the HSE has received sanction to hold a competition for two permanent ADON positions. The Court recommends that this competition should proceed with immediate effect and the process be completed within a three month time frame. The Court further recommends that the claimant should participate in the competition.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
9th June 2016______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jason Kennedy, Court Secretary.