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LCR22740

FULL RECOMMENDATION

CD/23/73
ADJ-00032118, CA-00042605
DECISION  NO.  LCR22740

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969


PARTIES:
HEALTH SERVICE EXECUTIVE

- AND -

A WORKER
(REPRESENTED BY IRISH NURSES & MIDWIVES ORGANISATION)


DIVISION:

Chairman: Mr Geraghty
Employer Member: Mr Murphy
Worker Member: Ms Treacy


SUBJECT:

1. Appeal Of Adjudication Officer Decision No. ADJ-00032118 CA-00042605

BACKGROUND:

2. The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 23 February 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 18 January 2023 the Adjudication Officer issued the following Recommendation:-

“I recommend that the Respondent pay to the Complainant the sum of €6000.00 in addition to any compensation that has already been discharged to her.”

A Labour Court hearing took place on 18 April 2023.

WORKER’S ARGUMENTS:


  • 1. The Worker was not afforded the opportunity to apply for the vacancy of CMM2

    2. The role was filled by transfer within the CMM2 grade, despite there being no established process to do so. There was no open competition.

    3. The decision to restrict applications deprived the Worker of a promotion opportunity and caused her significant embarrassment within the small department.


EMPLOYER’S ARGUMENTS:


  • 1. The Worker did not hold the appropriate grade to apply for this role.

    2. The AO’s suggestion that the Employer was obliged to tell individual staff if they were eligible to apply for posts, before any process for filling had been determined, is strongly contested.

    3. The expression of interest process was consistent with established practice for filling such posts and with good HR practice. It was also in accordance with CPSA procedures.








DECISION:

It is accepted by both parties that there are no agreed arrangements in place for the filling of posts at CMM2 level in the hospital. There is little doubt that this fact is a contributory factor in the instant case and the Court concurs with the observation by the Adjudication Officer that the Union and Employer should engage with a view to seeking to establish if such arrangements can be agreed into the future. The Court recommends that this should occur and notes that the State’s industrial relations machinery is available to the parties should they require it to assist in the resolution of any disputes.

It is in dispute between the parties as to whether there is an accepted and established practice of filling posts at this level by giving priority to staff at the level who wish to transfer. The Court notes the assertion by the Union that any such practice, if it exists, is not notorious such that all staff would know that the first option would be to facilitate transfers at the same level.

On the other hand, the Court absolutely accepts the strong contention by the Employer that there can be no obligation on any employer to inform individual staff in advance of any process for filling posts whether or not they will be regarded as eligible for consideration.

The Worker in the instant case believed, not unreasonably given the circumstances, that a promotion opportunity had become available and she had every reason to be disappointed at the fact that she was not afforded an opportunity to apply. While she was not entitled to be told in advance of any process for filling the post whether she personally would, or would not, be considered nor was she entitled to have any established practice, if such existed, to be disregarded, she was entitled to have clarity as to the process for filling posts. A large employer, such as in this case, should have clearly and generally understood processes in place to fill posts, preferably processes that are agreed between the Union and Employer.

Given the particular circumstances, the Court concurs with the Adjudication Officer that an award of €6000 to the Worker is appropriate and so recommends.

Signed on behalf of the Labour Court
Tom Geraghty
OC ______________________
26 April 2023 Deputy Chairman


NOTE

Enquiries concerning this Decision should be addressed to Orla Collender, Court Secretary.