FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY PNA) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal Of Recommendation Rights Commissioner's Recommendation r-072466-ir-08/SR.
BACKGROUND:
2. This dispute concerns the Union's claim for retrospection of pay for the Worker in regard to his appointment to the position of Assistant Director of Nursing (ADON). The Union claims that, prior to his permanent appointment to the post of ADON in February 2007, the Worker had been appointed to the post of ADON in an acting-up capacity in 2000. The HSE, however, states that the Worker was not appointed ADON in an acting-up capacity until July 2007. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 16th June, 2009, the Rights Commissioner issued the following Recommendation:-
- “The employer based their decision on this matter on their belief that the claimant had not commenced in his acting up position until 3rd July 2004. It is now clear on the basis of evidence submitted that in fact he commenced in this position on 29th April 2000.
Accordingly the claimant was long-term acting up in February 2007, when circular 003/2007 was issued, i.e. he was acting up for a continuous period of 6 years and 9 months at that stage. On that basis he was entitled to be covered or comprehended by circular 003/2007.
The is considerable merit in the claim, however I am also mindful of the fact that management are under severe pressure in relation to budgets which makes the payment of any financial award difficult for them.
In all the circumstances and taking all factors into account I recommend that the employer pay the claimant a compensatory lump sum payment of €18,000.00c. This is a compensatory lump sum and it is not remuneration or arrears of remuneration.
This payment is a full and final settlement of all matters in dispute. For the avoidance of any doubt, this recommendation is particular to the unique facts and circumstances of this particular case and it cannot and will not be used as a precedent or quoted by either party in any other case.”
- “The employer based their decision on this matter on their belief that the claimant had not commenced in his acting up position until 3rd July 2004. It is now clear on the basis of evidence submitted that in fact he commenced in this position on 29th April 2000.
4. 1. If the Worker had been an acting ADON from 2000-2004 he would have been in receipt of an acting-up allowance.
2. It is incomprehensible that the Worker would take on an acting-up role for four continuous years and not ask for the appropriate acting-up allowance.
3. The Worker has been unable to provide any evidence that he was interviewed for, or appointed to the position of ADON in an acting-up capacity prior to 2004 .
UNION'S ARGUMENTS:
3. 1. The Worker was appointed an acting-up ADON in April 2000 and continued in this position without interruption until he was appointed to that post in a permanent capacity in February 2007.
2. The Worker was not placed on the correct point of the ADON scale when he was appointed to the post in permanent capacity.
3.The Worker should have received the retrospective application of increments to cover his service in the acting post.
DECISION:
The net issue for consideration in this case is whether or not the Claimant met the terms of Circular 03/2007 for confirmation in a substantive post in which he or had been acting. This circular provides that its applicability is confined to persons acting as Assistant Directors of Mental Health Nursing on a continuous basis on or before 1st January 2004.
The Union contends that the Claimant was acting in that capacity since the year 2000. The HSE contends that the Claimant was appointed to an acting post in July 2004. It accepts that the Claimant did act-up intermittently prior to that date and was paid the appropriate allowances for those periods. It pointed out that the Claimant was not paid an acting-up allowance continuously over the period during which he claims to have held an acting post and never sought payment of such an allowance.
In the Court's view the Circular in issue was intended to apply to persons who were formally appointed to acting positions on or before 1st January 2004. This is clear from the conditions specified in the Circular, including the requirement that the individual would have undergone a competitive interview prior to appointment.
It could reasonably be assumed that a person who was formally appointed to an acting-up position would have been paid the appropriate allowance for the period in question. It is accepted that the Claimant was not in continuous receipt of an acting-up allowance prior to his appointment in July 2004. On that basis the Court must conclude that the Claimant had not been formally assigned to an acting-up post on a continuous basis prior to that date.
Accordingly the Court cannot concur with the findings and recommendations of the Rights Commissioner. It is therefore the decision of the Court that the employer's appeal be allowed and that the findings of the Rights commissioner be set aside.
Signed on behalf of the Labour Court
Kevin Duffy
18th November, 2009______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.