LCR22704

1.Appeal of Adjudication Officer's Decision No(s).ADJ-00031197 CA-00041607-001

• pays the worker compensation of €2500
• carries out a review of their processes and procedures in this area to ensure that they are in line with best practice."

DECISION:

This matter comes before the Court as a trade dispute arising from events occurring in 2020.

The Claimant was on a panel for appointment to the post of Physiotherapy Manager when a vacancy arose in such a post on 31^st  May 2020. The vacancy arose from the departure of the previous post holder.

Arising from a national agreement a review of a number of manager posts was ongoing at 31^stMay 2020. The post which came vacant on that date was one such post under review.

The Claimant was, on 19^th  May 2020, invited to express an interest in the post which was due to fall vacant on 31^st  May. The Claimant expressed such an interest and, on 26^th  May 2020, was ‘provisionally’ offered the post pending completion of pre-recruitment checks and clearances. She accepted that offer on 28^th  May 2020.

Separately, on 12^th  June 2020 the employer completed its review of the post and concluded that the post should be regraded to the higher grade of Physiotherapy Manager in Charge III.

On 24^th  June 2020 the Claimant was advised that all clearances were now complete but that the ‘post is placed on hold’ and that further instruction was expected as to how to proceed.

On 21^st  July 2020 the Claimant was advised by the employer that the post which she had accepted had been withdrawn. The employer subsequently conducted a competition for appointment to the higher graded post of Physiotherapy Manager in Charge III. That post had been created as a result of the review which concluded on 12^th  June 2020 and replaced the post of Physiotherapy manager which had fallen vacant on 31^st  May 2020.

The Claimant competed in the process undertaken to recruit a person to take up the role of Physiotherapy Manager in Charge III but was not successful in being appointed to that post.

The Court is asked by the Claimant to recommend significant compensation in respect of a potential loss of earnings and pension entitlements arising from the fact that she was not appointed to the position of Physiotherapy Manager in 2020. It is not suggested that the events giving rise to the claim gave rise to any actual loss of earnings.

The Court has given careful consideration to the written and oral submissions of the parties. It is clear that the timing of events has resulted in the creation of a post of Physiotherapy Manager in Charge III to replace the post of Physiotherapy Manager in the period during which active attention was being given to the appointment of the Claimant to that latter post. The post of Physiotherapy Manager in Charge III is, the Court understands, graded at a higher level than the post of Physiotherapy Manager.

The Court, having examined the detail of the matter, accepts that, in the circumstances, the employer could not have appointed the Claimant to the post of Physiotherapy Manager after a decision had been taken to abolish that post so as to create the higher graded post. It is clear that the post of Physiotherapy manager was effectively abolished on 12^thJune 2020 and that by that date the Claimant had not been appointed to that post.

It is difficult however for the Court to understand the processes under which (a) the Claimant was contacted by the employer on 19^th  May 2020 and invited to express an interest in the post of Physiotherapy Manager, (b) the Claimant was, in late May 2020, ‘provisionally’ offered the post of Physiotherapy Manager by the employer notwithstanding that the post was known to be under an active review, and (c) the post was effectively abolished by the employer on 12^th  June 2020.

The Court is clear that the Claimant, through no fault of her own, was given to understand that an opportunity for career progression existed and that she was encouraged to pursue that opportunity only for the opportunity to disappear within a short period of weeks. This set of events was and is undoubtedly a grave disappointment to the Claimant.

The Court, in all of the circumstances, believes that the employer should acknowledge the effect upon the Claimant of its actions albeit those actions were, no doubt, carried out in good faith.

The Court therefore recommends that the employer should make a payment of €2,500 to the Claimant as a gesture of goodwill and as an acknowledgement of the disappointment she has suffered.

The Claimant also raised a matter as regards the appointment of another employee on a temporary basis to the post of Physiotherapy Manager in Charge III in 2020. Having engaged with this matter at its hearing and having considered the written and oral submissions of the parties, the Court does not recommend concession of this claim.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
10 January 2023	Chairman