FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WICKLOW COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Recommendation R-051239-Ir-07/MMG
BACKGROUND:
2. The worker commenced employment with the Council in April, 1978, as a Clerk Typist and she reached the maximum of that scale in December, 1992. In June, 1997, the worker was appointed to the grade of Clerical Officer following the issuing of Circular Letter LA(P) 3/97 and was assimilated onto the Clerical Officer scale. Subsequent to this, agreement was reached through Circular EL 9/01, whereby Clerical Officers with previous relevant experience could have this experience taken into account for the purpose of incremental credit. In April, 2002, the worker was promoted to Grade IV. The Union's case is that at the same time a colleague of the worker's who had shorter service was also promoted to Grade IV but, through the application of Circular EL 9/01, was placed on a higher point of the scale than the worker concerned. The Council's case is that what happened is one of a small number of anomalies that occurred as a result of the application of Circular EL 9/01.
The case was referred to a Rights Commissioner and his recommendation was as follows:
"Both parties presented detailed and comprehensive submissions to the hearing.
It is evidenced that there is a nationally agreed methodology for taking care of incremental service in relation to temporary and permanent service elsewhere, which can be accredited to individual officers and this is commonly known as circular EL/9/01. It is my considered opinion that this circular has been applied correctly for the purposes of reviewing the pay scale and positioning of the worker.
I would indicate that I am not in a position to disturb what would be a nationally agreed methodology and review process but do perceive an anomaly when based on a direct comparison between the worker, the claimant and her colleague, both of whom are doing similar work when the total period of time afforded to the Council by the claimant exceeds the time accredited to the worker. This is particularly noticeable when both the claimant and her colleague were appointed to competitively gained promotional position in April 2002.
Without wishing to comment any further on the circular and the national position with regards to temporary time spent and accredited to recent employees of the Council, I would recommend that as a method of resolution to an Industrial Relations problem in a specific direct comparison case of one on one, that the worker would be afforded an individual review on a person to holder basis and be assigned to the Long Servicing Increment 2 as of the 1st April 2008 with the subsequent retrospection of payment, and further that she be afforded a cash payment equivalent to one years increment as a compensatory sum for previous service.
This recommendation is to be reviewed as a one off, direct comparison with her colleague and similar duties and is strictly on an individual person to holder basis and is not anticipated to be used for any future claim. All claims should stand on their own merits with relation to matters of concern between the various parties".
The Council appealed the recommendation to the Labour Court on the 26th August, 2008, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th January, 2009.
UNION'S ARGUMENTS:
3. 1. The worker concerned had 5 years and 3 months' more service with the Council than her colleague but was placed on a lower point of the pay scale as a result of Circular EL 9/01. Both workers are bespoke officers of the Council and no issues exist regarding sick leave or disciplinary matters.
2. The workerconcerned (with 31 years' unbroken service) will have to wait until April, 2009, to receive her second Long Service Increment (LSI) whereas her colleague received her second LSI in April, 2008.
COUNCIL'S ARGUMENTS:
4. 1. The application of incremental credit for clerical, administrative and analogous staff is determined through negotiation and agreement with the Union. At all times in relation to this case the Council has applied pay rates and awarded incremental credit in line with these agreements.
2. The worker concerned benefited from the agreement of 1996 when she moved to the grade of Clerical Officer in June, 1997, and received a higher rate of pay. She did not benefit from Circular EL 9/01 as she did not qualify under the terms of this agreement.
DECISION:
The appeal of the Rights Commissioner’s Recommendation before the Court, made by the Local Government Management Services Board on behalf of the County Council, concerns the appellant’s claim that an anomaly arose as a consequence of the application of the terms of Department of The Environment and Local Government Circular Letter EL 9/01 to her. This Circular dealt with the granting of incremental credit to officers at Grade 3 level with previous experience. The Court has considered the oral and written submissions of both parties.
The Court has examined the application of the terms of Circular Letter EL 9/01 to the appellant. In accordance with the criteria laid down she did not receive any additional increments, however, the Court is satisfied that its terms were correctly applied to her.
The Union referred to an anomaly which has arisen due to the fact that a worker with less overall relevant experience was placed one point higher on the applicable scale than the appellant when the terms of the Circular were applied in her case. However, there is no dispute regarding the application of the Circular in that worker’s case.
While the anomaly will be eliminated by April, 2009, as the Court is satisfied that the terms of the Circular were correctly applied, it does not recommend in favour of upholding the Rights Commissioner’s Recommendation to place the appellant on a higher point of the scale. Consequently, the Court overturns the Rights Commissioner’s Recommendation and upholds the County Council’s appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th January, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.