INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
NORTH WESTERN HEALTH BOARD
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Confirmation of employment status as Principal Psychologists
2. The dispute before the Court concerns two individuals who are employed by the North Western Health Board (NWHB) in the capacity of temporary Principal Clinical Psychologist following their success in a local competition. Initially they were paid an acting allowance and in 2000 the Board agreed to apply the increments of the Principal grade, back-dated to their initial appointments, in February of 1997.
- In 2002, a joint review group published a report, which contained a recommendation that Principal Psychology posts be created in each Community Services area. In 2004 proposed to fill these posts through the Local Appointments Commission (LAC) system, by public advertisement. The Unions claims that there are unique circumstances pertaining to the two posts and that the Board should proceed to seek to digress from the national competition and confirm their de-facto positions as permanent Principal Psychologists for the North Western Region. The Board contends that the grade of permanent Principal Psychologist is one of a number of grades, which, must be recruited by way of the LAC.
On the 29th September 2004, the Unionreferred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th January 2005, the earliest date suitable to the parties.
The Union agreed to be bound by the Court’s Recommendation.
3.1. The employer has already recognized each claimant’s acquired rights by allowing them to progress up the incremental scale for Principal Psychologists. The two individuals are now in receipt of long service increments and by permitting them to progress up the scale the Health Board has distinguished between the position of the individuals and so-called acting arrangements. There is no provision under circular 10/71 issued by the Department of Health for such incremental progression and accordingly by digressing from the provisions with respect to acting arrangements, the Board has conferred these workers with permanent status in everything but name.
2. To compel the individuals to compete for their own posts through the LAC is unjust, unreasonable, and unfair.
3. The NWHB has a significant successful record of digressing from LAC competitions in circumstances where the individuals have either acquired rights by virtue of their length of service, or where it was imperative to retain existing specialist staff. It is only reasonable that the individuals would be treated in the same way as other long-term temporary post holder colleagues employed by the NWHB.
4.1. The Board is appreciative of the service provided by both individuals in their capacity as temporary Principal Clinical Psychologists, however, as a public body the Board was at the time of the claim statute bound to refer the filling of a permanent Principal Clinical Psychology post to the LAC. It was also bound by the terms of the National Agreement.
2. If the Unions claim were to be conceded, this would have the effect of excluding certain Senior Clinical Psychologists who would otherwise be eligible for the permanent Principal Psychologist post. This exclusion would be to the disadvantage of such staff that would conceivably launch a claim under Employment Equality legislation on gender grounds.
3. The requirement upon the Health Board and the interests of those other psychology staff with an interest in applying for the post of permanent Principal Clinical Psychologist in the North West can best be served by way of an open and fair recruitment process and in the case of this grade this process is mandated to be undertaken by the LAC. This case has broader implications for recruitment of positions currently by the LAC on behalf of the Health Service and the Local Authorities. If the claim is successful, it may potentially establish a precedent that could be used to avoid the filling of positions prescribed under the Local Authorities (Officers and Employees), Act, 1926.
The claimants in this case have 15 years and 9 years service respectively in what is effectively the post which it is now proposed to fill. Having regard to the length of time over which the individuals have held the posts it would be unreasonable to expect them to participate in an open competition at this stage.
In the exceptional circumstances of this case the Court has come to the view that in fairness and equity the claimants should be confirmed as permanent in their current posts by designation and that the employer should seek a derogation accordingly.
This recommendation is made having regard to the special facts of this case and on the basis that it will have no precedent value and will not be relied upon or quoted in furtherance of any other claim.
Signed on behalf of the Labour Court
20th January, 2005______________________
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.