FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FOCUS IRELAND (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 Grier Worker Member: Ms Ni Mhurchu |
1. Appeal Of Rights Commissioner's Recommendation R-060339-ir-08/JT
BACKGROUND:
2. The Claimant commenced employment with the Respondent as a project worker in May 2004, and in November 2006 he was appointed assistant project leader on an acting basis. In June 2007 the Claimant was successful in a promotion competition and was appointed assistant project leader on a permanent basis. This dispute concerns the Claimant's claim that he was unfairly disadvantaged financially for taking the promotion. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 6th August, 2008 the Rights Commissioner issued the following Recommendation:-
- “I have considered the submissions and arguments advanced by both parties, the timing of the claimant's incremental entitlements is to say the least unfortunate. However he accepted the acting up position with a view to promoting his career within the organisation and succeeded in doing that. When he was appointed to the permanent position on the TL scale. I have decided on the balance of probability, that the claimant has benefited for a better pay scale in the long run and as chopping and changing within the salary scales would have serious implications for the respondent. I therefore do not find the claim well founded and therefore it falls”.
- “I have considered the submissions and arguments advanced by both parties, the timing of the claimant's incremental entitlements is to say the least unfortunate. However he accepted the acting up position with a view to promoting his career within the organisation and succeeded in doing that. When he was appointed to the permanent position on the TL scale. I have decided on the balance of probability, that the claimant has benefited for a better pay scale in the long run and as chopping and changing within the salary scales would have serious implications for the respondent. I therefore do not find the claim well founded and therefore it falls”.
3. 1. On his third anniversary in his substantive post as project worker the Claimant should have progressed up the pay scale by two increments.
2. On the day of his third anniversary the Claimant was acting assistant project leader but his substantive post was project worker.
3.The Claimant was disadvantaged financially for taking the acting position.
EMPLOYER'S ARGUMENTS:
4. 1. The Claimant cannot expect the Employer to use a different and previously applicable pay scale for him in his new role.
2. The Claimant was aware of the benefit he stood to gain if he remained a project worker for three years and he chose to become an assistant project leader.
3. Concession of this claim would place the Employer in a position whereby it would have retrospectively to adjust pay for numerous employees who have moved roles and pay scales over the years.
DECISION:
The Union submitted an appeal of the Rights Commissioner’s recommendation on behalf of an employee. The dispute between the parties concerns the appropriate point on the salary scale, which the appellant should have been appointed to on his permanent promotion.
Having carefully considered the oral and written submission of both parties, the Court accepts that the policy within the organisation when an employee takes up an acting role is to leave their current salary scale, move to the appropriate acting up scale and be assimilated in the normal way onto that scale.
In the case of the appellant, on being successful in his application in October 2006 for an acting up position at Assistant Project Leader level, he moved from the Project Worker scale and was assimilated on to the Assistant Project Leader scale in the normal way.
The Court accepts that had he completed his acting up role and not been successful in his application for a permanent post at Assistant Project Leader level, he would have reverted back to the Project Worker scale.
However, due to his success in his application for a permanent position at Assistant Project Leader level, he went from an acting up position to a permanent position at that level, without a break. In these circumstances, the Court accepts that management applied the appropriate point on the Assistant Project Leader scale to the appellant on his permanent appointment in June 2007.
Therefore, the Court concurs with the Rights Commissioner’s findings and upholds his Recommendation. The appeal fails.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th December, 2008______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.