INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
WESTERN HEALTH BOARD
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation Ir7191/01/GF.
2. The appeal concerns a nurse who is one of the most senior staff members within the Mayo Mental Health Services.The background to the claim arises from Labour Court Recommendation 16330 in which 1,100 Clinical Nurse Manager(CNM 1) posts throughout the Mental Health Services were created nationally. The criteria for determining the eligibility for appointment to the posts was that 50% of them would be filled on a seniority basis and the remaining posts would then be allocated by merit following an interview process. Subsequently 100 posts were allocated nationally 15 were allocated to the Western Health Board, 5 of which were allocated to the Mayo Mental Health Services. Following an internal competition three nurses were subsequently appointed to the CNM 1 posts from the panel in the hospital on the basis of their service. The Union claims that the claimant should have automatically been appointed to one of the posts on the basis of her seniority. Management rejected the claim on the basis that the claimant did not apply for the competition. The Union claims that the worker was treated unfairly and referred the dispute to a Rights Commissioner for investigation and recommendation. On the 9th July, 2002 the Rights Commissioner issued his recommendation as follows:
"I do not believe that the claimant should have automatically been offered the post in question simply on the grounds of long service. I am also satisfied sufficient notice and discussion surrounded the terms of the national agreement. Therefore, I am recommending in the Western Health Board's favour."
On the 9th August, 2002, the worker appealed the recommendation to the Labour Court, The Court heard the appeal in Castlebar on the 11th February, 2003.
3. 1. The claimant did not see any of the notices advertising the post. She assumed that she would be contacted automatically because of her seniority status, she has 42 years service. The Board has contacted employees by correspondence in relation to other issues i.e. annual leave. The claimant therefore, did not think it necessary to make an application.
2. The Board recently created a new CNM2 post in Claremorris without agreement with the Union. This is in breach of LCR 16145 which recommended that the future filling of posts must be carried out in accordance with a written procedure agreed by both parties.
4. 1. The claimant was required to apply for the post, which was advertised by means of the standard advertising procedure within the area, in order to be included in the competition which would be filled on a seniority basis from among the applicants. Seniority is determined from amongst the applicants for the posts and not from amongst all staff employed within the service. Other Health Boards use this method of selection.
2. The Board does not accept that the claimant was unaware of the competition, given the amount of publicity and discussion held locally between Union and Management.
3. It would not be sustainable to re-write the rules of the competition, thereby nullifying all existing appointments made under nationally agreed criteria. Many senior staff members throughout the Western Health Board did not apply and, therefore, were not considered for appointment to the CNM 1 posts.
4. The filling of the post in Claremorris was a unique and one off situation. It was the culmination of a long running dispute which resulted in the post being filled following local level negotiations and third party arbitration.
Having examined the circumstances in this case, the Court is satisfied that the notification procedures used by the Board in the advertisement of the CNMI posts were in accordance with the nationally agreed procedures and therefore, the Court dismisses the Union's appeal of the Rights Commissioner's recommendation.
The Court so decides.
Signed on behalf of the Labour Court
21st February, 2003______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.