ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00027618

Parties:

Complaint(s):

Date of Adjudication Hearing:  18/01/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 13 of the Industrial Relations Acts 1969] following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute

Dispute

The complainant is seeking that she is appointed to the position of Assistant Director of Midwifery on days in respondents hospital

Background

Following discussions between the Trade Union and the respondent it was agreed that the claimant would be regularised into the position of (ADOM)Assistant Director Midwifery in the  Maternity Hospital.

This agreement is confirmed by way of correspondence dated the 31st May 2019 to take effect from the 1st June 2019.

The respondent indicated in discussions that they wish to engage with complainant in relation to appropriate role into the future, however the Trade Union maintained that the complainant’s appropriate role of ADOM, was on day duty, in respondent’s Maternity Hospital, the position she occupied since 2011.

The Trade Union submitted that the respondent has failed to accommodate the claimant in that position.

It was also submitted that the position of ADOM had already filled by open competition, an alternative role at the ADOM grade was identified i.e. with the National Women’s and Infants Programme (NWIHP) and reporting to the clinical lead for the Programme and a professional reporting relationship to the NWIHP Director of Midwifery

The respondent has ensured that claimant has been remunerated at a national agreed salary for the position and she have progressed incrementally on the salary scale and has been afforded the terms and conditions of employment relevant to the grade of ADOM.

The respondent for their part stated that there is no vacancy on “day position available” for the complainant however there is a vacancy available on night duty, but the complainant has refused to take it.

The Respondent submitted that they had identified alternative roles suitable for the claimant however they cannot be expected to keep open these roles indefinitely.

The respondent also submitted that complainant has recently and successfully completed for the position of contact tracing centre operations manager on an 18-month temporary contract and is now been remunerated at the higher salary than grade 8.

Findings

I find the post held by the Complainant on an acting-up / temporary higher appointment was filled on a permanent basis by way of open competition which took effect from the 1st January 2018.

I find further discussions between the Union and respondent took place and letter issued on the 31st May 2019 from the Head of Corporate Employee Relations confirming the Complainants regularisation at Assistant Director of Nursing/Midwifery (ADOM)level with effect from the 1st June 2019.  This correspondence refers to discussions to take place between the parties to agree an appropriate role for the Complainant into the future.

I find the issue of regularisation is not in dispute and the Complainant has been remunerated at the appropriate salary of ADOM.

I find the issue outstanding is the appropriate role as referenced in letter to the Union dated 31st May 2019.

I find the Respondent refers to multiple correspondence which were issued to the Union on the 17th of June 2019, 13th February 2020 and 3rd July 2020 wherein a number of roles at the grade of ADOM were tabled for the Complainant’s consideration to include (ADOM)Assistant Director of Midwifery with the National Women’s & Infants Programme and (ADOM)Assistant Director of Midwifery (Night Superintendent), Respondent’s University Maternity Hospital.

I find the Respondent has confirmed at the hearing that the roles identified are appropriate in all the circumstances and also refers to LCR22336 wherein the Court recommend in that matter that the parties “would realistically focus on real roles which actually exist, and which would be available for the Complainant to take up.”

I find the Complainant was not in agreement with the proposed roles.

I find the Respondent identified an alternative role for the Complainant to work in a clinical role at the grade of ADOM within Contract Tracing with the Department of Public Health..

I find that the Respondent has sought to identify a number of alternative appropriate roles at the grade of Assistant Director of Midwifery (ADOM) for the complainant.

I find the Complainant subsequently competed for a different role at Grade VIII within the Contact Tracing Centre in Galway and the Respondent has agreed to a transfer for the Complainant at this new role thereby facilitating the Complainant remaining in Cork to carry out this function.

Recommendation

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I cannot support the complainant’s case and I uphold the respondent’s position

Dated:   22nd March 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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