FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUN LAOGHAIRE RAHTDOWN COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal Against Rights Commissioner's Recommendation Ir8146/02/JH
BACKGROUND:
2. The dispute concerns the level of remuneration the worker received for acting in a higher capacity for a 3 year period - from 27th, January 1998 to 1st, March 2001. At the time of the dispute, the worker was employed as a Senior Administrative Officer. In January, 1998, the Assistant Manager Planning (Principal Officer (PO) grade ) was taken ill and the worker was appointed acting PO in his place. He claims that he was, effectively, Assistant Manager Planning.
The worker was paid on the basis of circular letter EL 7/52 which covers payment for casual acting-up appointments in the Local Service. On the date of the appointment the allowance amounted to €2,233. The Assistant Manager retired in April 1998. The worker was approved to continue 'acting-up' on a week to week basis for a period not exceeding 6 months. However, no one was appointed to the post of Assistant Manager Planning and the worker continued to 'act up' in the position until March, 2001.
The workers' case is that for the period he was acting up he was not paid the appropriate rate of pay. He estimates that he was underpaid by €19,000. The Council's view is that the worker was paid correctly as per the Dublin Authorities Better Local Government (BLG) agreement.
The dispute was referred to a Rights Commissioner and her recommendation is as follows :
"If the terms of circular 32001 are applicable in Local Authorities then the terms of that circular should be applied to the worker. However if the circular is confined in its application to specified Government Departments and bodies not including Local Authorities then I do not recommend concession of this aspect of the worker's claim. In respect of the BLG clause 7 application I do not recommend concession of this aspect of the worker's claim. The application or otherwise of circular 32001 should be clarified as a matter of urgency by the official side so that either side may, if they wish, appeal this recommendation to the Labour Court within the 6 weeks period for such appeals under the Industrial Relations Acts, 1969 & 1990."
(The worker was named in the above recommendation.)
The worker appealed the recommendation to the Labour Court on the 17th of October, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th of January, 2003.
WORKERS' ARGUMENTS :
3. 1. The worker's circumstances in this case are unique. There is no precedent where a senior officer acted as an Assistant County Manager with delegated powers for such a long period of time.
2. The period 1998 to 2001 coincided with a time of exceptional activity in the planning section, creating great strain on management.
3. Circular EL 7/52 did not envisage an officer acting for a period in excess of 6 months.
4. The application of Circular EL 7/52 denied the worker the benefit of long service increments in his substantive grade as their value was absorbed in the acting allowance.
COUNCILS' ARGUMENTS :
4. 1. The worker was at all times given the maximum benefit in terms of pay with regard to the application of the acting-up arrangements as per Circular EL 7/52. Sanction was not forthcoming from the Department of the Environment and Local Government (the Department) for any departure from these regulations.
2. As per the BLG agreement, the County Manager made representations to the Department and an additional increment was awarded to the worker. This was backdated to the date of appointment.
DECISION:
The Court has considered the written and oral submissions of both parties. Due to the lengthy duration of his acting up role as a Principal Officer, the claimant maintains that when he was acting up he was not paid the appropriate rate of pay and, accordingly, when he was eventually promoted to such a post he lost out on incremental points on the grade.
The Court considered the rules governing the appointment of “substitute officers” in Circular EI 7/52 as amended by EL 9/96 and “arrangements for the calculation of higher duties allowances” in Circular 30/2001. The 2001 circular provides that in certain circumstances, a person assigned to higher duties may be treated as if s/he had been promoted, thereby entitling them to incremental credit. However, this circular emanates from the Civil Service conciliation and arbitration scheme General Council report No: 1382 and applies within the Civil Service only. It does not apply within the Local Authority Sector.
On appointment to the PO grade, the claimant was placed on the fourth point of the scale due to his position on his substantive scale (Senior Executive Officer grade). As a result of a commitment given in clause 7 of the Dublin Authorities Better Local Government agreement,viz.“Recognition for incremental purposes would be sought in long-term acting-up cases where those involved obtain permanent appointments”representations were made on the claimant’s behalf to the Department of Environment and Local Government by the County Manager as it was felt that exceptional circumstances existed, and an additional increment was awarded from his starting date in the promotional position.
The Court is satisfied that the rules governing the application of incremental credit have been correctly applied in this case; the possibility of further scope due to the exceptional circumstances have been examined and conceded by the Department. Accordingly, the Court is of the view that there is no further scope for additional incremental credit to be recommended.
Therefore, the Court upholds the Rights Commissioner’s recommendation and the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th January, 2003.______________________
BG/CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.