LCR22973

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045619 (IR-SC-00001348)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 28 November 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 2 November 2023 the Adjudication Officer issued the following Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. I find that it would be inappropriate to make a recommendation in favour of the Worker in relation to this dispute.

A Labour Court hearing took place on 16 May 2024.

DECISION:

The Appeal

This is an appeal by the Worker, a Nurse, from a Recommendation of an Adjudication Officer (ADJ-00045619; IR-SC-00001348, dated 2 November 2023) under section 13 of the Industrial Relations Act 1969 (‘the Act’). Notice of Appeal was received in the Court on 28 November 2023. The Court heard the appeal in Sligo on 16 May 2024.

The Dispute

The Worker is employed in Sligo-Leitrim Mental Health Service as a Staff Nurse. She was a candidate for the promotional post of Clinical Nurse Specialist – Community Mental Health Nursing, CHO1, for which post she was interviewed in April 2022. The normal practice in such competitions is that the pass rate applied to candidates for placement on any ensuing panel is 40%. However, in the relevant competition, Sligo-Leitrim Mental Health Service applied a 60% pass rate. The Worker achieved over 40% but less than 60% and submits that she was placed at a disadvantage by the decision taken only in the Sligo-Leitrim Health Service to raise the pass rate in the competition concerned as the usual 40% applied in all other areas.

The Worker’s Submission

It is submitted on behalf of the Worker that the 2022 competition was not conducted in the Sligo-Leitrim Mental Health Service in accordance with best practice as required by the Code of Practice promulgated under the Public Service Management (Recruitment and Appointments) Act 2004 in circumstances where no other area in CHO1 applied a pass rate of 60% in the relevant competition. The Worker’s submission is that a nurse attending for interview for the same post in another part of CHO1 had to achieve only a pass rate of 40% to be placed on the panel. This, according to Worker’s Representative, meant that an inconsistent standard was applied across the service and the Worker was thereby treated unfairly.

The Worker unsuccessfully invoked stages 1 to 3 of the Employer’s internal grievance procedure between October 2022 and March 2023. The Worker did not appeal the outcome of the recruitment competition.

The Worker requested the Court to recommend that Sligo-Leitrim Mental Health Service set aside the 60% pass rate, re-instate the nationally agreed 40% pass rate and place the Worker on the panel.

The Employer’s Submission

It is submitted on behalf of the Employer that the State’s industrial machinery is not the appropriate forum to consider the manner in which a public sector recruitment process was conducted in circumstances where the Oireachtas, in enacting the Public Service Management (Recruitment and Appointments) Act 2004, established a specific framework for the regulation of public sector recruitment where ultimate responsibility rests with the Commission on Public Service Appointments (‘the CPSA’). The Employer submits that the Worker should have utilised the appeals process under the Guidelines issued by the CPSA rather than initiating the within complaint under the Act.

Discussion and Decision

The Court, while mindful of the statutory remit of the Commission on Public Service Appointments, observes that it is not best practice for a single local area within the HSE to depart from a nationally agreed pass mark for qualification for appointment to a panel, as happened in this case. However, in pursing the within claim and appeal under the Act of 1969, the Union has utilised the incorrect mechanism to air the Worker’s understandable concerns about how the relevant competition was conducted in Sligo-Leitrim Mental Health Service in April 2022. In any event, the panel established from that competition has expired and the issues complained of are, therefore, moot.

The Recommendation of the Adjudication Officer is upheld and the appeal fails.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CN	______________________
10 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nerney, Court Secretary.