FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-1016391.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of Rights Commissioner's RecommendationR-1016391.The dispute relates specifically to the Worker's claim for regularisation of her long-term acting position as Assistant Director of Public Health Nursing with responsibility for immunisation, a post that has been fulfilled by the Worker for a period in excess of eight years. The Worker is seeking regularisation of her post and placement on the appropriate point of the relevant pay scale.The Employer's position is that there are ongoing National discussions in relation to long term acting within the Health Service and that no regularisation can take place prior to the conclusion of these talks. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th June, 2012, the Rights Commissioner issued her recommendation as follows:
"In the original recommendation issued on the 26th August, 2011, I accepted the legitimacy of the Claimant's grievance. At this point she has now been acting up as Asst. Director of Public Health for 7.5 years and the matter remains unresolved nationally. In the circumstances, I am upholding her complaint and recommend that the Claimant be regularised in her post with effect from the date of this recommendation".
On the 3rd July, 2012 the Employer appealed the Rights Commissioners 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 9th April, 2013.
UNION'S ARGUMENTS:
3. 1. The Worker has carried out her acting position for over eight years.
2. The Worker has been treated in an inequitable manner by her Employer as a result of its failure to regularise her position.
3. The Worker is seeking the immediate regularisation of her post and the adjustment of her salary accordingly.
EMPLOYERS ARGUMENTS:
4. 1. The Employer is bound by the terms of the Public Service Agreement 2010-2014 and must adhere to the current moratorium on recruitment and promotion.
2. The Worker's claim is cost-increasing and as such is precluded from the Public Service Agreement 2010-2014 .
3. The Worker's situation is not unique and cannot be dealt with in isolation. The Employer maintains that the Worker's claim can only be resolved at National level.
DECISION:
The matter before the Court concerns the employer’s appeal of a Rights Commissioner’s Recommendation, which found in favour of the Claimant’s claim for regularisation in her present post as Assistant Director of Public Health Nurse, a post she held since November 2004. The Union on behalf of the Claimant claimed that she should be placed on the sixth increment of the Assistant Director of Public Health Nursing scale in acknowledgement of her service in the post.
HSE Management appealed the Recommendation stating that it was not in a position to regularise the Claimant in the post as it was precluded by the terms of the Moratorium on Recruitment and Promotions in the Public Sector Agreement 2010-2014 (PSA) from doing so. Furthermore, it submitted that the claim was cost-increasing and accordingly prohibited under the terms of the PSA.
Having considered the submissions of both parties the Court takes the view that due to the length of time the Claimant has been carrying out the post and in recognition of the discussions on-going on regularisation for some substantial period of time, the Court recommends in favour of the Claimant’s claim and accordingly upholds the Rights Commissioner’s Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th April 2013______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.