LCR22287

FULL RECOMMENDATION

CD/19/315
ADJ-00018898 CA-00024304-001

DECISIONNO.LCR22287

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

HEALTH SERVICE EXECUTIVE / HSE CHO 1

- AND -

A WORKER
(REPRESENTED BY INMO)

DIVISION :

Chairman:	Ms O'Donnell
Employer Member:	Ms Doyle
Worker Member:	Mr Hall

SUBJECT:

1.Appeal of Adjudication Officer Decision no. ADJ-00018898 CD-00024304-001

BACKGROUND:

2.The issue involves a claim by the Worker. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 22nd August 2019 the Adjudication Officer issued her Recommendation as follows:

'Taking all of the foregoing into account, I find that I cannot recommend that the claimant be appointed to an Asst. DPHN post by designation in the light of the outcome of the interview process. However, I accept ultimately that for the reasons set out in the preceding 2 paragraphs the claimant has been treated unfairly and has a legitimate grievance. I recommend in full and final settlement of this complaint that the respondent continue to apply the rates of pay and terms and conditions of employment of an Asst. DPHN to the claimant from a current date to the date of her retirement. I further recommend that following her being deemed medically fit to return to work that the parties engage with a view to reaching a mutually satisfactory agreement on the base and assignment of duties to the claimant.'

On the 26 September 2019 the Employer 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 20th October 2020.

DECISION:

This case is an appeal by the Employer of the Decision of an Adjudication Officer. The issue in dispute between the parties arises from a breach by the Employer of their own policy in respect of the duration of acting up/ temporary assignments. It is not disputed that the Worker following a competitive process was assigned on a temporary basis to a higher post.

The Worker successfully worked in that position for five and a half years. The Employer then held a competition to fill the post permanently and the Worker was unsuccessful and therefore returned to her substantive post. The Employer could offer no justification for the breach of their own policy other than it was a regular occurrence. Nor was any explanation given for why the Worker had been left in position for five and a half years. The Workers situation has moved on since the Adjudication hearing as in the Worker is no longer working for the Employer.

The Court having considered all the circumstances of this case as articulated by both parties in their submissions and in the course of hearing have decided that the Worker has a legitimate grievance. The Court decides that the Worker should be paid compensation of €15,000 in full and final settlement of this grievance. The appeal fails. The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court

	Louise O'Donnell
H.M.	______________________
09/11/2020	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Heather Murray, Court Secretary.