FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EAST COAST AREA HEALTH BOARD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR5080/01/FL.
BACKGROUND:
2. The issue in dispute concerns the Union’s claim on behalf of an individual employee for compensation for loss of earnings from 1987. The worker concerned was employed as a driver attendant by James Connolly Memorial Hospital in 1980. He was promoted to the post of chargehand in 1986 and in 1994 he was given a dual allowance and the title of Waste Management Adviser. In 1997 he accepted secondment to the Technical Services Department to deal with waste management only. In July, 2000, following a competition, he was appointed to the post on a permanent basis and was promoted again in 2001.
In 1987, when the Eastern Health Board took over the management of the Hospital, the Union claims that it guaranteed the terms and conditions of Hospital employees on a red circled basis. It claims that this included the consolidation of shift premium into basic pay. However, the employer did not apply this to the claimant. In addition, when the claimant was permanently appointed to the post of Waste Management Adviser, he was not given credit for the time that he had already spent on secondment. He was, therefore, placed on the minimum point of the incremental pay scale. The issue was referred to a Rights Commissioner for investigation and his recommendation issued on the 16th of January, 2002, as follows:
“I recommend that the claimant be paid £12,000 to compensate him for his loss of earnings.”
The Health Board appealed the recommendation to the Labour Court on the 21st of February, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 25th of April, 2002, the earliest date suitable to the parties.
BOARD'S ARGUMENTS:
3. 1. In 1988 the claimant referred a claim for regrading to the Labour Court, but in its recommendation, LCR12199, the Court found that his pay compared more favourably than other comparable grades within the area. The Union did not seek consolidation of his shift pay into his basic pay at that time.
2. The Rights Commissioner was of the opinion that the claimant suffered a loss of earnings from 1987 until his secondment. The claimant received his basic pay, shift pay and dual capacity allowances, so it is not clear how a loss of earnings occurred.
3. The claimant was appointed to the position of Waste Management Adviser in accordance with Department of Health Circular 10/71. Starting pay on promotion and incremental credit for previous experience is governed by Section 14, which resulted in the claimant being placed on the minimum point of the scale.
4. The claimant's secondment was the subject of detailed discussions. He accepted the post and received an increase on his previous basic salary. The only outstanding issue in 1999 was the issue of €1,270 (£1,000) as full and final settlement of the alleged loss of earnings claim.
UNION'S ARGUMENTS:
4. 1. It has taken almost five years to have this case heard. The claimant has had to deal with six institutions during this time and it did not help that halfway through his secondment the Eastern Health Board ceased to exist.
2. The claimant accepted the secondment on the basis that he would not suffer any loss of earnings and that the post was to be advertised by the end of 1998. These commitments were not honoured by his employer. The claimant has suffered from enormous stress and the loss of approximately €3,800 per annum has affected him and his family badly.
3. The employee who acted up in the claimant’s substantive position of chargehand from 1987 to 2000 received a call out allowance, which the claimant had previously sought and been denied. His shift premium was also consolidated into his basic pay, thus increasing basic pay and benefiting his overtime rate.
4. The claimant's contribution has been a huge asset to the Board and there are very few people with his level of expertise and qualifications. The Board has acknowledged that he has suffered a loss of earnings. No employee would agree to a secondment to a post which required higher qualifications and carried higher responsibility, while incurring a loss of earnings.
DECISION:
Having considered the submissions of the parties, the Court is not satisfied that a sufficient basis exists on which it could interfere with the recommendation of the Rights Commissioner.
The award recommended should, however, be clearly understood as being in full and final settlement of all outstanding issues affecting the claimant.
Signed on behalf of the Labour Court
Kevin Duffy
29th April, 2002______________________
D.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.