FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FÁS - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation R-066990-Ir-08-MH
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner Recommendation R-066990-Ir-08-MH. The issues in dispute concern a worker who was employed as an instructor with FÁS in its Baldoyle Taining Centre, Co Dublin.
It is claimed that a personal request to transfer temporarily to Galway in 1992 was facilitated and that the worker remained on her Instructor rate of pay while assigned to a Clerical post in the new location.
Management contend that the temporary transfer arrangement should have ceased in 1993 and the worker should have returned to her Instructor role in Dublin. In 1995, management felt compelled to regularise the situation and offered certain options to the worker with regard to her employment. The options offered were that the worker could return to the Instructor position in Dublin or to remain in Galway at the appropriate Clerical grade.
The worker's position is that she felt pressured into being assigned to the lower grade in Galway and subsequent assimilation onto a new Clerical scale effectively nullified many years of experience as an Instructor. The worker further contends that she lost out on assimilation payments under the restructuring agreement.
The matter was referred to a Rights Commissioner for investigation. His Recommendation issued on 7th January, 2009 and did not find in favour of the worker. On the 16th February, 2009, the worker appealed the Rights Commissioners Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 17th April, 2009.
WORKER'S ARGUMENTS:
3 1 The worker was pressurised into accepting a clerical position at the time. The worker's personal responsibilities were such that returning to Dublin in the Instructors role was not an option.
2 Accepting the Clerical Grade and the subsequent restructuring of the clerical grades effectively meant that the worker was incorrectly assimilated onto the new payscale.
3 As a result of the grade restructuring, many years experience as an Instructor was ignored with regard to assimilation onto the new scale.
MANAGEMENT'S ARGUMENTS:
4 1 Management made every effort to faciltate the worker. It appointed her into a clerical position in Galway, and continued to pay her at her Instructors rate of pay for more than three years.
2 Management, when attempting to regularise the situation, provided the worker with many feasible options. It was only when these options were not accepted that FÁS felt it appropriate to correspond with the worker's Solicitor and provide a deadline for a decision.
3 Management were aware of the worker's personal difficulties that occurred at the time and made every effort to assist her for many years. It is, however, management's prerogative to regularise the situation.
DECISION:
This is an appeal by the claimant of a Rights Commissioner’s Recommendation, which found against her and rejected her claims against FÁS. The following claims were before the Court on appeal:
•FÁS unfairly coerced the claimant into accepting a reduction in salary from Grade 8 to Grade 14 in 1995, with resulting loss of annual leave and pension rights.
•FÁS unfairly assimilated the claimant into new Grade 11 Clerical Scale in 1995, thereby not giving her recognition for 10 years previous service.
Coercion claim
The claimant worked with FÁS as an Instructor in Dublin since 1985. In 1992 FÁS accommodated her with a personal request to transfer from Dublin to Galway for a period of one year where she worked in a Clerk Typist position. As it was a temporary transfer FÁS allowed her to continue to receive her Instructors salary with the intention that she would revert back to her Instructor role in Dublin in June 1993. A temporary replacement was recruited to fill her Instructor role in Dublin in the meantime.
Due to her personal circumstances at the expiry of her temporary transfer arrangement in 1993, she requested a permanent position in Galway and was allowed to remain there on a supernummary clerical position while discussions took place on her employment options. By March 1995 when nothing had been finalised and as she continued to be paid as an Instructor, FÁS decided to regularise the situation and sought her decision on a number of options open to her. When there was no conclusion to this process, on 31st August 1995 FÁS’s solicitors wrote to her solicitor outlining the various options and giving a deadline for a response. This letter coupled with her personal circumstances at the time, led her to believe that this measure constituted a form of undue pressure to accept a lower graded position at the time and gave rise to the current claim.
On 16th October 1995, the claimant signed a contract accepting a Clerk Typist role (Grade 14) in Galway; this she claimed was done under pressure.
Having considered the oral and written submissions of both parties, the Court does not accept that undue pressure was exerted upon her. FÁS had allowed a situation to continue for a substantial period of time whereby she was facilitated with a salary level above the grade she was operating at, up to October 1995. This was done on an individual to holder basis and it was reasonable to assume that it could not continue on an indefinite basis.
Therefore, the Court is of the view that it was reasonable for FÁS to place a deadline at the end of August 1995 when the situation had not been finalised. The Court fully accepts that due to the combination of events, which occurred around this 0.time and the consequent move to a lower paid grade (Grade 14) these events caused the claimant considerable upset at the time. However, the Court upholds FÁS’s right to regularise
the situation.
Assimilation Claim
The claimant has considerable difficulty with her assimilation onto the new Grade 11, which was created following a restructuring of grades in the Civil and Public Service in 1997. Under this agreement the grade of Clerk Typist (Grade 14) was abolished and staff were assimilated on to the pay scale for the new single clerical grade of Clerical Officer (Grade 11). The criteria for assimilation were prescribed in Circular 33/1997 and provided for retrospective effect back to 1st December 1995.
Management stated that the assimilation criteria were based on“service on the grade”,and as the claimant commenced on Grade 14 on 16th October 1995, she was assimilated onto point 11 of the new grade. Management make the point that under the terms of the “97 Agreement” the claimant’s status as a career instructor advanced to Grade 8 from 6th January 1995 and as such she received retrospective payments at that level from 1st January 1994 to 15th October 1995, consequently it submitted that her past service was taken account of under the new agreement and could not be taken into account a second time.
Circular 33/1997 states as paragraph 13:
“Serving Clerical Assistants who have six years or more satisfactory service on the maximum of the existing scale on 1st December 1995 should be assimilated to the 12th point of the revised scale with effect from that date.”
While the claimant may only have had a number of months as a “Serving Clerical Assistant”, the Court is of the view that when drawing up the agreement it was not envisaged that serving Clerical Assistants may have previous service at a higher grade and have dropped to lower grades, consequently, it is of the view that her overall service with FÁS should be recognised for assimilation purposes onto Grade 11.
Therefore, in all the circumstances of this case, the Court recommends that the claimant should be deemed to have been assimilated onto point 12 of Grade 11 with effect from 1st December 1995 and she should be paid the appropriate retrospective payments.
Accordingly, the Court overturns the Rights Commissioner's Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th May 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.