FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation R-066216-IR-08/JT
BACKGROUND:
2. The case involves a claim by the Union on behalf of its member to have him restored to the position of Acting Ambulance Officer and for compensation for the loss of earnings that he suffered as a result of his removal from the post. The worker has a long established career in the ambulance service spanning a period of over 30 years. In 2005 he successfully competed for the position of Acting Ambulance Officer in the Kildare area. Subsequently he was asked by the HSE to become involved in a pilot project concerning the organisation and scheduling of the transport of patients to private hospital facilities for the purposes of reducing their waiting times for various medical procedures. As part of this project the worker was permitted to leave his regular daily duties for two days per week. For these days he was paid the Acting Ambulance Officer acting-up allowance.
In 2007 the worker concerned, for stated reasons, decided to withdraw from further participation in the project and he returned to normal duties associated with his substantive post. The HSE concluded that the worker concerned had resigned from both the pilot project and the Acting Ambulance Officer position to which he had been appointed in 2005. The worker, through his union, disputed this and sought reinstatement to the post and compensation for the consequent loss of income arising out of the disputed interpretation of events.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th of February 2009, the Rights Commissioner issued Recommendation no r-066216-ir-08/JT as follows:
- "I have considered the submissions made by both parties. I have also carefully studied the arguments put forward. It is clear to me that the claimant terminated his cooperation with his acting position in July 2007 when he discovered he was unsuccessful in application for Ambulance Officer/Operation position. This remains his position to date. The matter remains in his hands.
I therefore do not find the claim well founded as it was the claimant's decision to terminate his cooperation and therefore the claim falls."
- On the 20th February 2009, the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court Hearing took place on the 13th May,2010.
- "I have considered the submissions made by both parties. I have also carefully studied the arguments put forward. It is clear to me that the claimant terminated his cooperation with his acting position in July 2007 when he discovered he was unsuccessful in application for Ambulance Officer/Operation position. This remains his position to date. The matter remains in his hands.
UNION'S ARGUMENTS:
3. 1.The duties associated with the patient transport project were outside of the advertised and normal duties assigned to the Acting Ambulance Officer post. The worker involved discontinued his involvement in the pilot project but did not resign from the, distinct and separate, substantive Acting Ambulance Officer post to which he had been appointed following a competition in 2005.2.The HSE acted incorrectly in removing the worker from the Acting Ambulance Officer post without cause or justification.
3.The worker is entitled to be restored to this post and to be compensated for any loss he sustained in the intervening period.
EMPLOYER'S ARGUMENTS:
4. 1. The worker terminated himself from the acting up position when he ceased to carry out the duties associated with the private hospital transport project.
The employer could no longer facilitate the worker in an acting up position once he had ceased to perform these duties.
2. The Public Service Appointments Commission prohibits the Chief Ambulance Officer from filling vacancies for Acting Ambulance Officer from a local panel where there is a national panel in existence. Consequently the workerconcerned cannot be restored to that position as events have overtaken the situation.
DECISION:
The Court has considered the oral and written submissions of both parties.
The Claimant applied for and was appointed to the position of Acting Ambulance Officer in the Kildare area in June 2005. In 2006 the Claimant, who has a high level of computer skills, agreed to participate in a special project and was compensated accordingly. In July 2007 the Claimant resigned from this project for stated reasons.
The Court is satisfied however, that the Claimant did not resign from the Acting Ambulance Officer post to which he was appointed in June 2005. Indeed, it is clear from information supplied to the Court by the HSE that he continued to carry out the Acting Ambulance Officer duties until February/March 2008. The Court was advised that the requirement for an Acting Ambulance Officer diminished over time and was finally eliminated as the Ambulance Service became more integrated nationally in the context of the abolition of the Health Board system and its replacement by the HSE.
Accordingly, the Court is of the view that the Claimant is entitled to compensation for the loss of earnings he incurred as a result of the restructuring of the service. The Court measures this at twice the annual average earnings over the period of his appointment to the position. This compensation is in full and final settlement of all claims arising in this matter.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
28th June 2010______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.