FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL EDUCATIONAL WELFARE BOARD (NEWB) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation R-044616-Ir-06/TB
BACKGROUND:
2. The dispute concerns the worker's claim for incremental credit. The worker was employed as a senior Clerical Officer (CO) with Irish Rail from December, 1978, to April, 2002, (22 years). In June, 2003, the worker applied through open competition for a position as CO with the NEWB (the Board). She was successful and commenced employment in January, 2004. When taking up her new position the worker was advised that the Department of Finance's policy for incremental credit/assimilation applied as follows:
"Only current public/civil servants could avail of assimilation/incremental credit. Staff commencing employment with the NEWB who had a break in service or who had no previous public/civil service experience had to commence on point 1 of the salary scale."
The worker was placed on the 1st point of a 13 point salary scale at €18,384 per annum. The worker claims that she became aware in 2004 of an Executive Officer (EO) and a Higher Executive officer (HEO) who had received incremental credit although neither had prior public/civil service experience. She obtained a copy of Department of Finance Circular 21/2004 which deals with the granting of incremental credit. She was advised that her case would be referred to the Department of Finance. She claims that in March, 2006, she was told by her HR Manager that herself and another CO would be receiving incremental credit. The following week she was told that the Department of Finance had declined to give her the incremental credit.
The Union referred her case to a Rights Commissioner and his recommendation was as follows:
"Based on the submissions of the parties and on the discussions at the hearing it is clear that there are technical reasons which prevent the respondents from applying incremental credit to the claimant. No explanation was given as to why Irish Rail is not given the same rate for incremental credit purposes as services with bodies such as An Post, Telecom Eireann, Coillte Teo etc.
In fairness to the claimant, I think she should be given incremental credit for her previous service with Irish Rail and I recommend that she be given credit for previous credit as claimed by Impact."
The Board appealed the recommendation to the Labour Court on the 23rd of March, 2007, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 28th of June, 2007.
UNION'S ARGUMENTS:
3. 1. Despite apparent direction from the Department of Finance the Board has applied incremental credit to an EO and a HEO with no prior civil/public service experience. It has also awarded incremental credit to Educational Welfare Officers who had breaks in their service.
2. The worker is the only member of staff who has not received incremental credit for previous Public Service experience.
3. No reason has been given as to why the Board refuses to recognise service from Irish Rail for incremental credit purposes.
BOARD'S ARGUMENTS:
4. 1. The HR Manager did not promise the worker that she would receive incremental credit for her previous service with Irish Rail. She told the worker that she would enquire as to the situation with the Department of Finance but was told by the Department that she did not qualify.
2. The EO referred to by the Union who received incremental credit did so as a result of age-related credit. A circular issued by the Department of Finance discontinued this practice from October, 2002. As the worker concerned did not commence employment with the Board until August, 2003, she was not eligible for age-related credit.
3. Whilst the Board is sympathetic to the worker's situation, neither Finance Circular 21/2004 nor a subsequent Circular E134/1/65 allow Irish Rail to be counted as a Public Service Body for the purpose of incremental credit.
DECISION:
Having considered the oral and written submissions of both parties the Court accepts that Corás Iompair �ireann is not one of the organisations included in Circulars 21/2004 and E134/1/65, for the purposes of granting incremental credit for previous service. On that basis the Court upholds the Board’s appeal and overturns the Rights Commissioner’s recommendation. However, the Court recommends that the parties should make a joint submission to the Department of Finance for special consideration to apply incremental credit to the claimant due to her substantial experience as a Clerical Officer with Irish Rail.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th July, 2007______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.