FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-045423-Ir-06/POB.
BACKGROUND:
2. The Union's claim on behalf of the worker is for the upgrading of the post of Area Administrator, North Cork Community Care, from Grade 7 to Grade 8. The Union's case is that in 2003 Area Administrator posts in North Lee and South Lee were upgraded from Grade 7 to Grade 8. The Union made its claim on behalf of Area Administrators in North Cork and West Cork in September, 2004. (Both cases have been dealt with separately by the HSE). In March, 2004, a circular issued from the Department of Health and Children which stated"no existing management/administrative posts at Grade 7 or higher should be regraded other than in circumstances where the formal approval of the Department has been secured in advance."The employer advised the Union that it would be adhering to the circular and that, as a result, there would be no upgradings.
The Union referred its case to a Rights Commissioner and his recommendation was as follows:
- "The Claimant initiated her grievance in September 2004 and it is still unresolved. The process of giving the claimant an answer to her grievance has taken too long and is unreasonable for a simple grievance.
- Both Representative parties to this grievance have a responsibility to find a means to bring a speedy but considered conclusion to the grievance.
- Nothing in the Department circular issued in March 2004 prevents an upgrade from Grade 7 to 8, it merely states that the Respondent would need Departmental approval in advance.
- I do not support the employer view that a Rights Commissioner is precluded from hearing this case under Section 13 of the 1969 Industrial Relations Act because it relates to a body of workers. This claim commenced in tandem with an upgrading claim for a similar post in West Cork by letter from Impact to the Respondent dated September 24th. The Respondent was aware of both claims since that date and has dealt with them individually since then. The Respondent attended a Rights Commissioner's hearing on August 29th 2006, to deal with the West Cork claim. No mention was made at that hearing of any issue debarring a Rights Commissioner from hearing either case due to Section 13 of the IR Act. In fact the Respondent entered into a commitment to conclude a job evaluation of the West Cork position within two months (which has not been completed I understand) and knowing there was a claim for the North Cork position. In my view the Respondent consented to the hearing of both claims individually by participating in the August 29th 2006 hearing and not raising an objection then.
- To block the Claimant from pursuing her claim individually would mean that any employee in any large employer with different locations in the country would be obliged to link claims of a similar nature with other employees. I believe this would be unworkable and lead to a frustration on behalf of claimants.
- In my view the key issue and the one that all parties should now focus on is to determine if the position warrants Grade 8 or not. I cannot decide that issue now with the information currently available to me and with the lack of a job evaluation process to assess the claim. I understand that the parties have a job evaluation system in place nationally for up to Grade 7. At first instance I propose the parties meet and agree nationally that Grade 8 comes into this job evaluation system and the claimant's grievance can then be considered using the job evaluation system. The Representative parties should decide nationally between them if they support bringing Grade 8 into the system within two months from the date of this Recommendation and deal with the Claimants grievance within a further two months. If it is not feasible to bring Grade 8 into the national system, for whatever reason, then the Claimant is entitled to an independent job evaluation review of the merits of her upgrading case. This should be completed within three months of the date of this Recommendation".
The HSE appealed the recommendation to the Labour Court on the 26th of April, 2007, in accordance with Section 13(9) of the Industrial Relations Act, !969. A Labour Court hearing took place on the 5th November, 2008, the earliest date suitable to the parties.
HSE'S ARGUMENTS
3. 1 Management is satisfied that the Area Administrator post in North Cork is at the appropriate level. The claim is cost-increasing and precluded by the terms of Towards 2016
2. Management is not in a position to enter into an independent job evaluation review for an individual case as such action would have implications beyond the individual claimant.
3. Should any post be evaluated and regraded then that post would have to be filled by way of competition.
UNION'S ARGUMENTS
4. 1.The worker's case has been ongoing since 2004.
2. Comparable posts in North Lee and South Lee in Cork and a post in Kerry have regraded a Level 8, the latter in 2006.She is carrying out all the duties of a Grade 8. Consequently, an anomaly exists in regard to the worker's post.
3 At a Right Commissioner's hearing in regard to the Area Administrator in West Cork the HSE advised that it was no longer relying on the Department of Health and Children circular from March, 2004.
DECISION:
The Court has carefully considered the submissions of the parties to this appeal.
It is clear that the circular upon which the employer relies in support of its appeal does not preclude the implementation of the Rights Commissioners Recommendation. It merely provides for certain controls on the upgrading of posts. The question of upgrading does not arise at this time and will not arise unless the job evaluation recommended establishes that the Union's claim in that respect is well founded.
In the circumstances the Court is not satisfied that a legitimate basis exists upon which it could interfere with the recommendation of the Rights Commissioner. Accordingly, the recommendation is affirmed and the appeal is disallowed.
The job evaluation proposed should be completed within three months of this decision and the parties should then meet to consider its outcome.
Signed on behalf of the Labour Court
Kevin Duffy
17th November, 2008.______________________
CON.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.