FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : THE HOSPITALLER ORDER OF ST. JOHN OF GOD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's recommendation No.75/98CW concerning rate of pay.
BACKGROUND:
2. The worker concerned has been employed as a care worker by the Hospitaller Order of St. John of God at its location in Islandbridge since March. 1975. The St. John of God Centre in Islandbridge provides day care and respite care facilities for children and adults with learning disabilities (mental handicap) ranging from moderate to profound. Funding for the service is provided by the Department of Health.
The dispute concerns the Union's claim on behalf of the worker for an increase in remuneration in consideration of her obtaining additional qualifications. The worker claims that it was her understanding that she would be rewarded with an increase in pay on obtaining additional qualifications. Management rejects the claim.
Local level discussions failed to resolve the issue and the matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"I consider that it is highly commendable and meritorious for the worker to have displayed the ability and determination to do as she had done. Many people seek to enhance their job prospects nowadays through additional qualifications. Their success provides them with an opportunity to seek better paid positions. The job content determines the rate of pay and not the qualifications of a person filling it.
I have every sympathy with the worker's situation but I cannot recommend an increase in pay or the creation of a new post specially for her. I consider the Centre should keep in mind her aspirations and try to accommodate her subject to the necessary constraints.
I recommend that the worker accepts the Centre's decision, and that the Centre keeps the aspirations of the worker in mind if suitable vacancies occur."
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the Union to the Labour Court on the 19th of June, 1998 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal on the 16th of November, 1998.
UNION'S ARGUMENTS:
3. 1. In 1991, the worker commenced a diploma course in Social Care Studies. She successfully completed the course and attained her diploma in 1994.
2. The worker was given an expectation that, on obtaining a Diploma in Social Studies, she would benefit by way of increased remuneration. Precedent for this has been established at the Centre.
3. Significant developments in the services for persons with learning disabilities has taken place, with the emphasis on facilities being based in Community Settings and Day Care facilities. The expertise of staff has contributed in facilitating this ongoing development. This expertise has been enhanced by staff undertaking studies such as a Diploma in Social Care.
4. It is a reasonable expectation for employees who have undertaken a significant module of education or up-skilling, to be remunerated in terms of pay by their Employer.
5. The Rights Commissioner recommended that the employer keeps the aspirations of the worker in mind. The Union acknowledges that suggestions were put forward by the employer for the purpose of exploring a satisfactory proposal to meet the claim. One formal proposal which was presented to the worker did not meet her expectations.
6. The worker's claim is based on her expectation to benefit by way of an increase in her remuneration having successfully completed a comprehensive course of study. This expectation arose from a commitment given to her by her employer.
ORDER'S ARGUMENTS:
4. 1. The Order accepted the Rights Commissioner's recommendation and endeavoured to implement it. At a meeting with the Union on the 15th of May, 1998 the Order put forward the following proposals in respect of the worker:
- offer of a position of assistant community facilitator (Assistant Houseparent) in
Menni community based residential service with a salary scale from £15,470 to
£20,150;
- offer of a position of Junior Instructor in Menni Enterprises, Bluebell, with a
salary scale from £11,183 to £15,401;
- offer of a position of Junior Instructor in Menni Day Services, Islandbridge, with
a salary scale from £11,183 to £15,401.
2. The Order has been generous in relation to funding study leave and examination leave in respect of the worker, especially during the period when the health services suffered severe cutbacks.
3. There is no evidence of any commitment by management to review the worker's rate of pay on completion of her studies.
4. There is no question of creating a special post to accommodate the worker's demands. To do so would create a dangerous precedent resulting in comparable claims being made for upgrading by other employees on foot of successfully pursuing a course of studies approved and supported by the Order.
5. No position of qualified child care worker exists within the complement approved by the Department of Health for services at St. John of God Day Services, Islandbridge.
6. The strictures imposed by the Department of Health do not provide for an adjustment to the staff complement in St. John of God Day Services.
7. The worker can apply for positions of child care worker in the Lucena Clinic (Child and Adolescent Mental Health Services) and/or in the Community-Based Residential Services (Services for People with Learning Disabilities).
8. The Order attempted to implement the recommendation of the Rights Commissioner but finds the worker's response unreasonable.
DECISION:
The Court having considered the written and oral submissions finds no reason to change the Rights Commissioner's recommendation.
The Court, therefore, rejects the appeal and upholds the Rights Commissioner's recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
27th November, 1998______________________
F.B./D.T.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.