FULL RECOMMENDATION
CD/20/56 | RECOMMENDATIONNO.LCR22340 |
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
PARTIES :HSE SOUTH
- AND -
A WORKER (REPRESENTED BY INMO)
DIVISION :
Chairman: | Mr Haugh | Employer Member: | Mr Marie | Worker Member: | Ms Treacy |
SUBJECT:
1.HSE not Adhering to HR Circular 17/2013
BACKGROUND:
2.The dispute concerns a nurse employed in the Intensive Care Unit (‘ICU’) at Cork University Hospital and who has been acting CNM2 in that unit for over six years (‘the Worker’). Her substantive post (with effect from 1 November 2019) is Senior Enhanced Staff Nurse. The Union is seeking to have the Worker regularised in the CNM2 post and submits the HSE’s refusal to regularise the Worker is in breach of Circular 17/2013. The Union is also seeking compensation of €20,000.00 for her employer’s failure to regularise the Worker and for the stress experienced by the Worker arising from the extended duration of the dispute. The Worker commenced employment with the Respondent on 2 April 2000. She began acting up in the CNM2 role on 21 September 2014 as the substantive post-holder commenced a period of extended sick leave. In early 2019, as the Respondent had been notified that the substantive post-holder would not be returning, it decided to advertise the position on a permanent basis in line with the Code of Practice governing the permanent filling of post in the public sector. However, the INMO raised a grievance on behalf of the Worker and the post was not advertised at that time. On 7 February 2020, the Worker, referred this dispute to the Labour Court in accordance with Section 20(1) of the Industrials Act, 1969, and agreed to be bound by the Court’s Recommendation. A Labour Court hearing place on 2 December 2020.
UNION’S ARGUMENTS:
The Union submits that the Worker has occupied the CNM2 post successfully and has undertaken the full range of duties associated with the post for the duration of the period for which she has been acting up. The Union further submits the Respondent has participated in WRC hearings under section 13 of the Industrial Relations Act 1969 in relation to many individual regularisation claims in the past and that its refusal to attend such a hearing in relation to the Worker is inconsistent with its actions in the past. COMPANY’S ARGUMENTS:
The Respondent submits the issue of regularisation of long-term acting staff is the subject of on-going discussions at a national level. The Court was informed that a position paper was prepared in relation to the matter dated 20 January 2020, following engagement between the parties with the assistance of the Workplace Relations Commission.
The Respondent also submits that the within dispute was referred to the Court on 7 February 2020, in circumstances where the Union was fully aware of the progress of the national-level discussions and had been requested by the Respondent to allow the Worker’s case to be dealt with having regard to the ultimate outcome of that process. The Respondent emphasised that its position should not be construed as being personal to the Worker whose competence, experience and skill are held in the highest regard.
RECOMMENDATION:
The Court recommends that the Worker’s dispute with the Respondent be considered in the context of the final outcome of the national-level discussions on regularisation. The Court was assured that although this process has been delayed because of the Covid-19 pandemic, a conclusion to the process is imminent.
The Court does not recommend concession of the Worker’s claim for compensation. The Court so recommends. | Signed on behalf of the Labour Court | | | | Alan Haugh | NJ | ______________________ | 8 January 2021 | Deputy Chairman |
NOTE
Enquiries concerning this Recommendation should be addressed to Noel Jordan, Court Secretary. |