FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES: HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY FORSA) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00040062 CA-00051652-001. I find this complaint to be well founded and I recommend that the Respondent pay to the Complainant compensation in the sum of €16,000. DECISION: This matter came before the Court by way of an appeal on behalf of the Health Service Executive (‘the Employer’) and a cross-appeal by the Worker from a Recommendation of an Adjudication Officer (ADJ-00040062, dated 12 May 2023) under section 13 of the Industrial Relations Act 1969. The Adjudication Officer recommended compensation of €16,000.00 be paid to the Worker. The Court heard the appeal in Sligo on 27 September 2023. Summary of the Factual Background The Worker was employed by the Health Service Executive from May 2000 to 10 September 2023 on which date he resigned his employment for reasons not directly related to the within appeal. The Worker’s most recent substantive permanent post prior to his resignation was Grade V in the Employer’s HR/Payroll Centre of Excellence in Sligo. Over the course of his career, the Worker has successfully applied for a number of locum and specified purpose contracts at grades higher than his then substantive grade. Most recently, the Worker successfully applied for a Temporary Grade VII position in Galway. Having been placed second on the panel he was offered the position in order of merit for the period 6 July 2021 to December 2022. The Worker availed himself of a period of statutory carer’s leave during the currency of this fixed-term contract. The issue that gives rise to the within dispute stems from the Worker’s participation in a competition for a permanent Grade VI Payroll/HR Compliance Officer role. The Worker was placed second on the panel and subsequently received an Expression of Interest. On 1 March 2022, he was requested to forward the names of three referees which he did. However, on 14 March the Employer withdrew its offer of employment at Grade VI because it deemed one of the references to be unsatisfactory. That reference had been provided by the person who had been the Worker’s line manager while he had been working in the Temporary Grade VII position from 6 July 2021 onwards. The Worker thereafter availed himself of his right of appeal against the Employer’s decision. This appeal was unsuccessful and the Worker sought a formal review of the process under section 7 of the CPSA Code of Practice. This was also unsuccessful. The Parties’ Submissions The Worker takes issue, in particular, with the fact that the impugned reference stated as follows: “Went on Carer’s Leave Immediately and Unwilling to attend workplace”. The Worker is of the view that this inappropriate reference to his decision to avail himself of his statutory entitlement to take carer’s leave to look after his elderly mother during the height of Covid may have been taken into account to his disadvantage when the employer withdrew the offer of permanent employment in a Grade VI post. He is also concerned that the retention of this reference and the related correspondence on his personnel file may negatively impact on him in the future should he seek employment with the Employer again in the Sligo area. The Employer submits that it fully accepts the Worker’s entitlement to avail himself of statutory carer’s leave. It also submits that the fact that he did so in 2021 was not the operative factor in its decision to withdraw the offer of permanent employment at Grade V1 in March 2022 and that this decision was based on other concerns in relation to key competencies required for appointment on a permanent basis at that level. Discussion and Decision At the within hearing, the Employer’s representative gave an undertaking to the Court that the impugned reference and all related correspondence would be removed from the Worker’s personnel file and the Employer’s email system. The representative also gave an undertaking that he would personally provide the Worker with a reference to replace the impugned reference. The Worker accepted the Employer’s offer in this regard. The Court recommends that the Employer comply with these undertakings in a timely manner and the new reference is provided to the Worker no later than four weeks from the date of this Decision. Having considered the Parties’ written and verbal submissions, the Court is of the view that the issues in dispute should not have escalated to the level that they have. The fact that they did, it appears to the Court, is due in no small measure to a lack of clarity in the Employer’s communications to the Worker in relation to the basis for its decision to withdraw its offer of employment at Grade V1 in March 2022. The Court, therefore, recommends that the Employer pay compensation of €5,000.00 to the Worker in recognition of this. The Recommendation of the Adjudication Officer is varied accordingly. The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary. |
