LCR22405

FULL RECOMMENDATION

SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990

PARTIES :

HSE CERS

- AND -

200 HEALTH AND SOCIAL CARE PROFESSIONALS
(REPRESENTED BY FORSA)

DIVISION :

SUBJECT:

1. Exclusion From Recruitment Panels.

BACKGROUND:

2. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 25 January 2021 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 7 April, 2021.



UNION’S ARGUMENTS:

3. 1. Forsa states that their members were misled by the HSE when they were informed that they were not eligible for the supplementary panel competition.

2. Forsa contends that it is not reasonable or acceptable that the HSE can admit to wrong doing that has materially affected their members’ career development, promotional opportunities, ability to earn and pension entitlements and then refuse to engage in restitution.

3. Forsa is requesting the HSE to either reinstate the primary panels or provide appropriate financial compensation to their members.

EMPLOYER'S ARGUMENTS:

4. 1. The HSE acknowledge the issue pertaining to candidates at the time, however there is no means of retrospectively making any changes in this regard.

2. The HSE have revised the guidance to ensure there is no further ambiguity in the future.

3. The HSE state that the candidates in question held an advantageous position for 3 years, having had priority of choice over all posts offered, ahead of candidates on the supplementary panels.

RECOMMENDATION :

The issue in dispute between the parties concerns a cohort of Health and Social Care Professionals who were placed on 2015/2016 recruitment/promotional panels. A policy decision taken by HSE CERS in 2016 resulted in those Worker’s being excluded from the opportunity to compete for supplementary panels in 2017 which then became the de facto promotion panel.

Union Submission

Recruitment to theses grades is done through national recruitment panels. As no internal transfer policy exists if a worker wants to move to a new geographical location, they have to apply through the recruitment process and hope they will be offered a position in the location they wish to get to.

As a result of this these competitions are always well subscribed. In April 2019 the Employer decided to disband the 2016 panel and to elevate the 2017 supplementary panel to the status of primary panel. The decision to do this contradicted a commitment that the Employer had given in writing to the Workers advising that a new panel was being advertised but as they were currently on a panel and their panel would not expire, they were not eligible to apply for the new competition. They were also informed in the same email that their panel would take precedence over the new panels. However, in April 2019 the HSE took the decision to disband the 2016 panel. The effect of that decision was to block the workers on the 2016 access to recruitment/promotion. The Union wrote to the Employer seeking that the panel would not be disbanded and referencing the earlier commitments given by the Employer. However, the Employer proceeded and disbanded the 2016 panel. The issue was referred to the WRC in 2019 and despite the fact that the Employer acknowledged that it had made an error no resolution was achieved. The Union is looking for the relevant workers to be compensated for the lost opportunity in terms of competing to be placed on the panel

Employer’s submission

The Employer submitted that it was regrettable that the communications that issued to the candidates remaining on the 2016 panels at the launch of the supplementary panels regarding their eligibility did not clearly articulate that there was a choice available to them. it should have indicated that they could opt to retain their existing position on their panel or remove themselves from the panel in order to apply for a position on a supplementary panel. The Employer accepts that the communication did not accurately reflect this choice and clumsily only advised that existing panel members were not eligible to apply. Having acknowledged this the HSE submits that there is no means of retrospectively making any changes at this point. They did draw the courts attention to the fact that they have revised their procedures to ensure this does not happen again.

Discussion

The Court notes that what is in play in this case is a missed opportunity to compete and normally that would not be something that would warrant a Court recommendation. However, in this case the Employer incorrectly advised this cohort of Workers and then when it was brought to their attention, they declined to take any action to remedy the anomaly that they had created. The Court accepts that at this remove it would not be practical to restore the panel. The Court recommends that the Workers covered by this claim be afforded the opportunity to avail of training in Personal Development, Interview Training, and or Interview coaching, and that the Employer would meet the cost of that training for each person who avails of it up to a maximum of €500 per person. The opportunity to avail of this should be for a period of twelve months from the date of the recommendation. The Court is making this recommendation because of the unique circumstances of this case and notes the Employer’s statement to the effect that they have put new processes in place to ensure it does not occur again.

The Court so recommends.

NOTE

Enquiries concerning this Recommendation should be addressed to Mary Kehoe, Court Secretary.