FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Recommendation No. ADJ-00009842.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On 27 August 2018 the Adjudication Officer issued the following Recommendation:-
- “My Recommendation in this matter is that the complainant should accept the conclusion of the grievance procedure”.
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 19 September 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 14 November 2018.
DECISION:
This is an appeal by the Union on behalf of a Paramedic of an Adjudication Officer’s Recommendation which held against his claim. The Union alleged that the Claimant was disadvantaged by the Employer’s recruitment campaign which it ran in June 2015 when it sought expressions of interest in a Paramedic Supervisory grade (LEMT)“for experiential purposes”.
The Claimant did not put his name forward as the position advertised was not an appointment nor a job offer. The Union stated that in making a decision not to apply the Claimant was cognisant of HSE HR Circular 017/2013 which provided that no payment will be made for any temporary appointments to allow for the completion of a recruitment process or appointment from a panel. It provides that staff will be expected to take on the role and responsibility of the higher post provided it does not exceed three months. Later the Claimant discovered that an acting allowance was in fact paid, he raised a grievance and ultimately pursued a claim for compensation for the loss of such an allowance.
Management stated that in the absence of approval to recruit a Supervisor and in the absence of a current supervisory panel to draw from, it put in place interim arrangements to meet its service needs. In response to the claim, Management stated that there were collective discussions at national level aimed at regularising those in acting roles, which the Union agreed to, and a new Ambulance Supervisor recruitment process has been put in place. This had the effect of ceasing all interim arrangements.
Management disputed the Claimant’s claim as it submitted that he did not incur any actual loss as he did not take on any additional duties. It was open to him to apply for one of the posts in 2015 and yet he did not do so. In 2017 he raised a grievance about the 2015 competition at which time issues raised with regard to the posts were being processed and worked through as collective national issues under the auspices of the WRC. Agreement was reached with the Union in August 2017 that permanent appointments of LEMT posts would be by way of a new recruitment competition. The Claimant’s grievance went through all three stages of the grievance process. The Adjudication Officer recommended that the Claimant should accept the outcome of the grievance process.
The Court notes that prior to the closing date for the competition in 2015, the Claimant made enquiries about the role and was informed by Management that while there would be no payment of an acting allowance for a period of three months, it was intended that successful candidates would be acting up in the position for an indefinite period taking into account their performance in the role or on the staff members’ willingness to continue in the role. However, that period would ultimately be determined when LAP positions would be filled from a national panel. However, it was made known at the time that successful candidates would be appointed to acting up positions for an indefinite period.
The Court is of the view that with that clarification any ambiguity was clearly expressed and clarity provided to enable the Claimant to make an informed decision as to whether or not to apply for the expressions of interest. He did not do so. Therefore, the Court upholds the Adjudication Officer’s Recommendation and rejects the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
27 November 2018Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.