INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY INMO)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. An appeal of a Rights Commissioner's Recommendation r-134333-ir-13/DI.
2. The Claimant began her employment as a Staff Nurse in Tallaght Hospital in 1998. In 1999 her role was recognised as commensurate with that of the newly established grade of Clinical Nurse Specialist (CNS/CNM2) and she was re-graded to this position in the Dermatology Department. In September 2004 the Claimant took Parental Leave which finished on the 20th March 2005 and on the 21st March 2005 the Claimant began a career break which lasted until March 2010. During this period the Claimant’s substantive post was filled on a permanent basis.
Following the career break the Claimant resumed work as a Staff Nurse in Tallaght Hospital as there was no suitable vacancy at CNS/CNM2 level. In September 2012 the Claimant took up a post of acting CNS in the Dermatology Department to cover for maternity leave. In March 2013 the Claimant requested a transfer out of the Dermatology Department.
In July 2012 a submission was put to the Manpower Approval Committee for the re-grading of a Staff Nurse position. The Staff Nurse had been employed in the Dermatology Department for some time and had successfully undertaken a specialist education programme in Dermatology. The re-grading of the Staff Nurse post to CNS was approved in August 2012 but was not implemented until the 24th January 2013.
- The Union said the CNS post in Dermatology belonged to the Claimant and as such it should have been offered to her.
- The Employer said the Staff Nurse did not fill a CNS vacancy but was re-graded based on her eligibility and qualification in line with recognised career pathway guidelines in Nursing.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 29th January 2014 the Rights Commissioner issued the following Recommendation:-
- Having fully considered the submissions made by the parties I am satisfied that no vacancy existed in the Dermatology Department. The re-grading of the Staff Nurse to CNS grade was implemented in accordance with the recognised career pathway guidelines in Nursing and as such was only applicable to the Staff Nurse involved. I therefore find against the claim.
On the 2nd January 2014 the Claimant 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 18th February 2014.
3. 1. The Employer failed to honour the provisions of the Career Break Scheme by not placing the Claimant back in her substantive post of CNS in the Dermatology Department on her return to work.
2. During the Claimant's career break, the CNS post should only have been filled with persons on a specific purpose contract.
3. At a maximum, the employer should have offered the Claimant an appropriate vacancy at her substantive grade within twelve months of her return from career break, in line with the scheme. The Employer compounded the above by subsequently appointing a colleague to a post of CNS in Dermatology, without any transparent appointment process.
4. 1. The hospital’s policy is clear. No employee has an automatic entitlement to return to the same job or grade, if a vacancy does not exist and if such a return would not be suitable.
2. The claimant was absent on career break for the full five years and for a period thereafter, leading to a six year break from nursing. The extensive level of change experienced in dermatology nursing during that time cannot be underestimated.
3. The Staff Nurse who was upgraded to CNS completed all aspects of the CNS pathway and fulfilled all the duties and responsibilities at a CNS level.
The Court notes that the Rights Commissioner issued a fully reasoned and comprehensive recommendation in this case. While broader submissions were made on behalf of the Claimant in the appeal the net issue in contention remains the same. That is whether the decision of the Hospital to re-grade another nurse constituted the creation of a vacancy that the Claimant should have filled.
Having considered the submissions made by the parties the Court cannot see any basis upon which it could disagree with the conclusion on this point reached by the Rights Commissioner. In these circumstances there is no basis upon which the Court could interfere with the recommendation of the Rights Commissioner.
Accordingly, the recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
16th May, 2014.Chairman
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.