LCR22940

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043452 (CA-00054123)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 13 October 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 1 March 2024.

RECOMMENDATION:

The Court has given very careful consideration to the written and oral submissions of the parties.

The worker competed in a promotion competition in June 2022. Three candidates were appointed to positions from that competition. The worker and a colleague were placed on a panel for Grade V roles which might arise during the lifetime of that panel. The colleague was placed first on the panel and the worker second. That panel was programmed to expire after a period of six months. The worker’s colleague was appointed to fill a fillable vacancy which arose in the work area during the lifetime of the panel.

According to the employer, two further vacancies at Grade V level arose in the area of work concerned during the lifetime of the panel. Following a review carried out in the context of ongoing restructuring, one of the posts which had fallen vacant was suppressed and one was restructured to a grade IV post.

This account of events does not appear to be seriously contested by the worker as a statement of fact.

Separately to these events, it appears that two further Grade V posts became vacant during the lifetime of the panel. According to the employer, the process of securing approval for the filling of those vacancies was under way at the date of the expiry of the panel. At the date of expiry of the panel no approval had been given for the filling of these two vacancies. Consequently, the worker could not be appointed to fill either vacancy.

 According to the worker, there was no issue as regards approval for the filling of the vacancies and there was no barrier to filling the vacancies during the lifetime of the panel.

The employer contends that the organisation is under a process of re-structuring in the context of the coming together of three separate hospitals. That restructuring includes the work area of the worker. According to the employer, that process involves a scrutiny of all vacancies as they arise.

The worker rejects the assertion that a restructuring is taking place.

The employer submitted that all fillable Grade V vacancies in the area which arose during the lifetime of the panel, and which were in scope of the panel, were filled from that panel.

The worker contests that assertion.

The Court concludes that, on the balance of probability, vacancies which arose in the lifetime of the panel were not automatically capable of being filled without some form of approval process. The Court also concludes that, in the context of the coming together of three hospitals, it is likely that some form of attention is being paid to potential restructuring of operations in each of the hospitals, including in the employer hospital.

In the submission made on behalf of the worker it was alleged that, having empanelled the worker as a result of a competition there was

‘a deliberate action on the part of management to prevent Louise from being promoted’.

At its hearing, the Court invited the worker’s representative to elaborate in relation to a possible rational motivation on the part of management for an apparently irrational act of placing the worker on a panel for possible promotion and then, according to the worker, setting about deliberate acts to prevent her from being promoted. The worker’s representative set out that he could not provide a motivation on the part of management of the employer for the ‘deliberate action on the part of management to prevent’ the worker from being promoted,

In all of the circumstances and taking account of the written and oral submissions of the parties, the Court can find no basis to conclude that the employer acted other than according to the mechanisms and frameworks in place in the employment in its operation of the promotion competition and subsequent panel at issue in this trade dispute.

The Court does not recommend concession of the worker’s claim.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
14 March 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Sinéad O'Connor, Court Secretary.