FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTH EASTERN HEALTH BOARD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR16993/03/GF
BACKGROUND:
2. The Union claim is for regrading on behalf of the worker who is currently employed as a Pathology Technician at our Lady's Hospital, Navan. The worker submitted his claim for regrading to Senior Pathology Technician in November 2002 on the basis he is in possession of the appropriate qualification, and that he was performing duties at the higher level. The claim was rejected for the following reasons:
(1) The worker did not process the appropriate qualification.
(2) That two Pathology Technicians must exist for a Senior Post to apply.
The Union rejected management's reasons and the case was referred to a Rights
Commissioner whose findings and recommendations were as follows:
"I have considered the evidence given at the hearing and I feel I must come to the conclusion that the claimant performs very valuable duties and his claim should succeed. I recommend in his favour operative from April 30th, 2003."
The Board appealed the recommendation to the Labour Court on the 5th of May 2004, in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 24th of June, 2004, in Trim.
UNION'S ARGUMENTS:
3. (1) The Union has had great difficulty in getting the case dealt with by management.
(2). The worker has the required qualifications for promotion. Single Status Pathology Technicians are allowed to have Senior Status.
(3) The Board cannot expect senior duties to be performed whilst not acknowledging this level of competence through the agreed payscale. The monetary cost of the claim is not significant.
BOARD'S ARGUMENTS:
4. (1) The worker was appointed to the post pursuant to Circular 22/00, effective from November 23rd, 1999. He does not have 5 years' experience as a basic Pathology Technician which is needed for promotion. This is an explicit requirement of the circular.
(2) There was no discussion or agreement between the worker and the Hospital Administrator for him to carry out duties other than those applicable to his position.
(3) The Board has given a commitment to review the worker's post in November, 2004.
(4) The claim is cost increasing and precluded under the terms of Sustaining Progress. The Board has not received an allocation for a Senior Pathology Technician.
DECISION:
The Court is satisfied that the claimant is required to undertake duties which are appropriate to that of Senior Pathology Technician. It appears to the Court that in these circumstances the Health Board must either pay him at a rate appropriate to the higher grade or instruct him to desist from performing the higher duties. Since the latter course would undoubtedly disrupt the smooth running of the Pathology Department at the Hospital, the Court does not consider this to be a viable option.
In the peculiar circumstances of this case, including the proximity in time of the claimant meeting the prescribed service qualification, the Court is satisfied that the Union's claim should be conceded. Accordingly, the Court affirms the recommendation of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
12th July, 2004______________________
PM/CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.