FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - TWO NAMED INDIVIDUALS (REPRESENTED BY CALLAN TANSEY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal against Rights Commissioner's Recommendation No's r-078008-ir-09-SR & r-078012-ir-09-SR.
BACKGROUND:
2. The issue concerns two staff nurses seeking upgrades to Clinical Nurse Manager 2 positions on the basis that they have acted up in those positions over many years. The dispute was referred to the Rights Commissioner service in 2005 and resulted in the posts being evaluated to see if an upgrade was warranted. An independent evaluator was agreed between the parties as were the terms of reference for the evaluation. The evaluation did not recommend that the substantive posts be upgraded. The method by which the evaluation was carried out and its conclusions were referred to the Rights Commissioner for investigation.
His recommendation issued on 15th March 2010 and did not find in favour of the workers claim on the basis that all parties had agreed the facts of the case and the proces by which the evaluation was to be carried out.
On the 14th April 2010, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 14th February, 2012.
WORKER'S ARGUMENTS:
3. 1. The evaluation process was flawed in that the workers were "shadowed" (evaluated) in their substantive posts and not while carrying out the roles in which they were acting. This resulted in an inadequate evaluation being carried out.
2. The Public Service Agreement (PSA) 2010-2014 is not relevant to this dispute as the issues predate the agreement. It would be a nonsense to deny the claim on the basis of the PSA as the agreement did not exist at the time.
EMPLOYER'S ARGUMENTS:
4. 1. The claim cannot succeed as it is cost increasing and precluded under the provisions of the Public Service Agreement 2010-2014 which prohibits all claims being made or processed during the Agreement. In addition the matter of long term acting up is currently being dealt with at national level and any decisions at this stage are inappropriate.
2. The workers accepted the previous Rights Commissioner's Recommendation which provided for an agreed evaluator and agreed terms of reference for the parties. It is dangerous that having agreed the process that the workers make an issue on the results of the process. Management are of the view that they have complied with the previous Rights Commissioner's Recommendation and seek the Courtto affirm the current Recommendation.
DECISION:
It is abundantly clear that the matter giving rise to this dispute can only be resolved within the terms of the Public Service Agreement 2010-2014 and the legislative provisions relating to the control of public service pay.
It seems to the Court that the only practical possibility of resolving this dispute is in the context of the national negotiations on regularising the position of those in long term acting positions.
It is the decision of the Court that the position of the Claimants be dealt with through that process.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
23rd February, 2012.______________________
AH.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.