FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Recommendation no: ADJ-00007197.
BACKGROUND:
2. This case concerns a claim by the Union on behalf of the Worker that Management failed to afford the Worker the opportunity to apply for a vacant CNM1 post.
The Union said that the practice had always been to fill promotional posts from the National Recruitment Panel.
The Employer said that when the CNM1 post became vacant in Cleary House, Letterkenny, the Director of Nursing used the opportunity to facilitate a relocation of a current CNM1 from Carndonagh. This, it maintained, was in line with the new agreement with the trade unions.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 4 October 2017 the Adjudication Officer issued the following Recommendation:-
- “In all the circumstances I accept that the situation is practically irretrievable and it is not reasonably possible to remove the other employee from the position he occupies. In those circumstances I recommend that the parties and in particular the Employer immediately make every possible effort to facilitate the Complainant’s transfer/reassignment to a CNM1 post in CH in L at the earliest possible date and that this effort continue until such a position is offered to the Complainant”.
The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 12 October 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 27 June 2018.
DECISION:
This is an appeal by the employer against the Recommendation of an Adjudication Officer ADJ-000067197 in a claim by an employee concerning Management’s failure to afford her the opportunity to apply for a vacant CNM1 post.
The Adjudication Officer upheld the Claimant’s complaint and recommended that the Claimant should be transferred/reassigned to a CNM1 post at Cleary House, Letterkenny at the earliest possible date and that such efforts should continue until such a position is offered to her.
The Claimant’s work location is in the Department of Psychiatry, Letterkenny. She was appointed as a CNM1 in May 2015 and was placed 14thon the national panel for CNM1 Posts in Donegal. When a post became vacant in Carndonagh in July 2015, she made enquiries about the possibility of a future transfer back to Letterkenny if she responded to the “expression of interest” for the position. At the time she was advised that such a transfer would not be possible in the short to medium term.
When the CNM1 in Letterkenny retired in June 2016, she was informed that the newly appointed CNM1 in Carndonagh was being transferred to Cleary House, Letterkenny. The Claimant submitted a grievance complaining about the transfer and stating that she had an expectation that it would be filled from the National Recruitment Panel. The Claimant’s grievance was not upheld.
The Union on the Claimant’s behalf maintained that the practice had always been to fill promotional posts from the National Recruitment Panel. It submitted that on the previous four occasions CNM1 vacancies in Donegal had been filled from the panel. It contended that it was inconsistent with the normal practice and lacked transparency that the vacancy in Letterkenny was filled by the transfer of a CNM1.
Management stated that when the CNM1 post became vacant in Cleary House, Letterkenny, the Director of Nursing used the opportunity to facilitate a relocation of a current CNM1 from Carndonagh. This, it maintained, was in line with the new agreement with the trade unions. This agreement facilitates staff to transfer or move to an existing vacancy for which they are suitably qualified and hold an existing post at this grade. It enhances staff development and opportunities by allowing staff to broaden their experiential learning across different aspects of the service which it maintained was beneficial to both staff and the service.
Having considered the submissions of both parties, the Court notes that while acknowledging the excellent work carried out by the Claimant and her place on the National Recruitment Panel, Management proceeded to fill the vacancy in contention instead of deferring it to await the outcome of her grievance. Furthermore, the Court notes that the decision to transfer the CNM1 from Carndonagh to Letterkenny was made by the same Manager who heard the Claimant’s grievance. The Court is of the view that from a natural justice point of view this was unfair to the Claimant.
The Court cannot accept that an agreement was entered into regarding staff transfers as contended by management. It is clear there were discussions on the issue but no record of an agreement on the issue has been provided to substantiate management's position. The Court was informed that the issue of introducing a transfer policy is currently the subject of national discussions. The Court is of the view that in the light of the issues which arose in this case, those discussions should address and resolve the conflict between those placed on the National Recruitment Panel and those seeking transfers within HSE areas/Regions and throughout the country.
In conclusion, having considered the Employer's appeal, the Court does not uphold the appeal and consequently concurs with the findings of the Adjudication Officer that every effort should be made to transfer/reassign the Claimant to a CNM1 post at Cleary House, Letterkenny at the earliest possible date and that such efforts should continue until such a position is offered to her.
Therefore, the Court upholds the Adjudication Officer’s Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
18 July, 2018.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.