FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST. VINCENT'S (PSYCHIATRIC) HOSPITAL A - AND - TWO WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR14939/03/JH
BACKGROUND:
2. The issue involves a claim by two workers, one employed by St Vincent's Hospital and the other employed by the Northern Area Health Board (NAHB) as care attendants. On foot of an advertisement in January, 2002, they applied for positions as "Housepartents", were successful at interview, and their appointment confirmed to them on 12th March 2002. The two workers concerned have not yet been placed on the houseparent scale and continue to be paid as attendants. The NAHB have admitted that an error occurred and have apologised in a letter to the Union dated the 27th March, 2003. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 19th November, 2003, the Rights Commissioner issued her recommendation as follows:
“Based on the submissions made and for the reasons set out in the foregoing I recommend that the worker received €5,000 from the Northern Area Health Board and that the other worker receive €5,000 compensation from St. Vincent's Hospital Fairview for their mutual responsibility for the situation that has developed in respect of the claimants. These sums to be accepted in full and final settlement of any claim by the workers arising from the advertisement placed in January 2002".
(The workers are named in the Rights Commissioner's recommendation)
On the 22nd December, 2003 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969, and are seeking the appointment of both workers to the grade of Houseparents and if this is not possible significant compensation is warranted. A Labour Court hearing took place on the 1st April, 2004, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3.1 Both workers have suffered significant financial losses as a result of the Board not fulfilling their obligations to them.
2. The grade of Houseparent has been replaced by Childcare Leader which attracts a significantly higher salary.
- Houseparent: - €25,886 to €34,675
- Childcare Leader - €37,488 to €44,055
4. The workers should be appointed as Houseparents from the 12th March, 2002 as the offer of acceptance of the position constituted a valid contract between the parties.
HEALTH BOARD'S ARGUMENTS:
4.1 Concession of the Union's claim would have immediate implications for the staffing structures in this service.
2. The grade of Houseparent does not exist within the Mental Health Service and appointment to this Assistant Houseparent pay scale is precedent setting and has major repercussive effects within the NAHB and nationally.
3. Following a national agreement and a separate Labour Court recommendation for staff employed in the intellectual Disability sector, the grade of Houseparent and Assistant Houseparent no longer exist. They have been replaced by Child Care Worker and Leader and Social Care Worker and Leader. The Recommendations are confined to staff employed in the sectors only and the Board has no scope to deviate from these.
4. When the matter came to the attention of the NAHB we acknowledge and apologised that an error had been made. On this basis the NAHB was prepared to accept the decision of the Rights Commissioner.
DECISION:
The Court having considered all of the information supplied by the parties supports the Rights Commissioner's conclusions in this case.
However the Court is not satisfied that the amount of compensation takes into account all aspects of this case as they affect the claimants.
The Court therefore recommends that the compensation figure of €5,000 recommended by the Rights Commissioner be increased to €12,000. The rights Commissioner's recommendation to be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
19th_April, 2004______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.