FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : THE LEGAL AID BOARD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal Of A Rights Commissioner's Recommendation R-055641-Ir-07/RG
BACKGROUND:
2. The matter before the court concerns a worker employed as a Solicitor Grade III. Due to Term Time arrangements in June, 2007 a Managing Solicitor Grade II Acting Up position arose. The worker enquired about the Acting Up position and whether she was the most senior Solicitor Grade III. At the end of June, 2007, the worker recieved an email confirming she was being appointed to the Acting Grade II post. The worker faxed her acceptance of the offer. In July, 2007, the worker was informed that a mistake had been made and another Solicitor Grade III was more senior and was being appointed to the Acting Up post.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 11th March, 2008 the Rights Commissioner issued his recommendation as follows:
" 1. In relation to the issue of determining seniority for grades of Solicitors in the Legal Aid Board, I am of the view that all the relevant parties should ensure that a consistent and fair approach applies on a national basis on the issue of reckonability of service and that any changes of the current circular 18/98 - Special Leave without Pay for Career Break - should be negotiated between the parties.
2. In relation to the substantive issue of the appointment of (the worker) to the Acting Up position, effective form 25th June and subsequent withdrawl of the appointment on the 4th July, I note that there were ongoing discussions between SIPTU and Management resulting in the final email of 20th July from (Director of Human Resources), confirming withdrawl of the appointment. This was some four weeks later. I also note that the Solicitor Grade III actually appointed to the Acting Up position was absent on Annual Leave from 9th - 15th July, a period of one week and from the 13th August - 2nd Sept, a period of three weeks and furthermore that from 13th August - 2nd September the two Managing Solicitors Grade II were also absent on Annual Leave, resulting in Ms (the worker) being the most senior person in the Law Centre for that three week period. In all circumstances of this particular case and in no way creating a precedent, I recommend that the Claimant be paid an ex-gratia payment of €1551 with immediate effect. I further recommend that and up to date seniority list be maintained by the HR Section of the Legal Aid Board going forward.
3. A further issue arose during the Hearing where the Claimant asserted she had been instructed to take direction in relation to her work from another Solicitor Grade III i.e. the same Grade, within the Law Centre, Pope's Quay. Mr (Director of Human Resources) said no such instruction had been issued by the HR Section. I recommend that the HR Section inform Management in the Law Centre, Pope's Quay to withdraw any such instruction."
On the 16th April, 2008 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A labour Court hearing took place on the 24th September, 2008
UNION'S ARGUMENTS:
3. 1 The worker commenced employment with the Board at the beginning of October 2001. The person appointed to the Acting Up post commenced in December 2001. The worker requested a career break for 6 months but was absent from work for only 3 months. She understood her time of to be actually Special Leave for Compassionate purposes. She was never informed the loss of service for that period would still apply in the changed circumstances.
2 The deduction of the three months concerned is improper as well as unfair. Under the Redundancy Payments Act, 1967 service is continuous when the absence permitted by the employer is less than thirteen weeks. The worker in this case was absent for a period of just over twelve weeks.
3. The worker was further undermined by her Manager when told that in the absence of Solicitors Grade I and Grade II she must take instruction from her fellow Solicitor Grade III.
COMPANY'S ARGUMENTS:
4. 1 The board's position is that there is no ambiguity surrounding this matter. It is clear that the worker's career break cannot count towards her seniority and that her attention was drawn to all the conditions governing her career break. As a result her colleague was eligible for the Acting Up post.
2 The Board regrets the error in the first instance which led to the worker being informed that she was to be assigned to the position, but it has apologised to the worker for this and the matter was brought to her attention within three working days.
3 The Managing Solicitor is adamant that the worker was never told to take instruction from her fellow Solicitor Grade III colleague.
DECISION:
The matter before the Court concerns an appeal of a Rights Commissioner’s recommendation in relation to the Union’s claim that the appellant was entitled to be appointed to an acting Grade II post during the period 25th June to 7th September 2007, as she was the most senior Solicitor Grade III at the time. The Union also sought to place the appellant as the more senior of the two named Solicitor Grade III based at Pope’s Quay Law Centre for the purposes of determining the assignment of any future acting-up positions which may arise.
The Court has considered the submissions of both sides and decides that the Board’s application of seniority rules was in line with the general principles laid down by Department of Finance Circulars 18/1998 and 22/1998, which states that periods of leave for career breaks and for compassionate leave are non reckonable. Therefore, the Court is satisfied that the Board correctly applied the rules to the acting up position in 2007.
Furthermore, the Court is satisfied that the Board correctly applied the rules to the application of allowances for the performance of the duties of a higher grade in accordance with Circular 38/2007.
However, due to the misunderstanding which occurred between 29th June and 4th July 2007 when the acting up post was offered to the appellant and she had commenced the role before a mistake was rectified, the Court concurs with the Rights Commissioner’s recommendation that an ex-gratia payment of €1,551.00, on a no precedent basis, should be paid to her with immediate effect.
The Court notes that the Board fully accept that a Solicitor Grade III should receive work instructions from a more senior grade and not from a person at the same grade. The Board indicated its intention to formally write to the appellant confirming this position.
Consequently, the Court upholds the Rights Commissioner’s recommendation and rejects the Union’s appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd October, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.