FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation r-077817-ir-09/GC.
BACKGROUND:
2. This dispute concerns the Worker's claim that the HSE has incorrectly denied her promotion to a Grade IV position. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 28th September, 2009 the Rights Commissioner issued the following Recommendation:-
- “Given all the circumstances of this case and without prejudice to the outcome of discussions between HSE and IMPACT on the future filling of long term acting positions, I recommend that [the worker] be awarded permanent Grade IV from 22nd March 2007 on the appropriate terms and conditions including incremental credit”.
- “Given all the circumstances of this case and without prejudice to the outcome of discussions between HSE and IMPACT on the future filling of long term acting positions, I recommend that [the worker] be awarded permanent Grade IV from 22nd March 2007 on the appropriate terms and conditions including incremental credit”.
3. 1. TheGovernment’s moratorium on recruitment within the public and civil service has precluded the HSE from upgrading the Worker to a Grade IV position.
2. The HSE has sympathy for the Worker and is reasonably confident that a positive outcome of national discussions will result in her claim being settled to her satisfaction.
3.Consession of this claim, in the absence of a settlement of outstanding national issues, would result in serious national industrial relations problems.
UNION'S ARGUMENTS:
4. 1. The Worker has been acting Grade IV since June 2003.
2. The Worker was initially denied appointment to permanent Grade IV due to the HSE's failure to honour the terms of its agreement with IMPACT, and now she is a victim of the public service moratorium.
3. The HSE itself has conceeded that the cost of awarding the Worker Grade IV would be minimal.
DECISION:
The claim before the Court is an appeal by HSE of a Rights Commissioner’s Recommendation, which found in favour of the claimant and recommended that she should be awarded permanent Grade IV from 22nd March 2007 on the appropriate terms and conditions including incremental credit. HSE appealed the Recommendation on the grounds that it was at variance with the Government’s moratorium on recruitment within the public and civil service and it was also at variance with section 4 of Circular 15/2009, which prohibits the sanctioning of promotions except in exceptional circumstances, and prohibits the upgrading of posts for the duration of the moratorium.
The Court has carefully considered the written and oral submissions of both parties. The Court notes that HSE accepts that the claimant has been in an acting up position for a very lengthy period of time and accepts that had there not been certain obstacles in her way she would have had very genuine expectations of achieving permanency at Grade IV level in 2008.
HSE put the Court on notice that the particular obstacle which prevented the claimant from achieving permanency in 2008 may now be removed as a result of the completion of the Public Sector Transformation/Reform talks on 30th March 2010 (which have yet to be balloted upon). As part of the completion of these talks reference was made to the establishment of a process under the auspices of the Labour Relations Commission to regularise a substantial number of employees in long term acting up positions.
HSE informed the Court that it was most anxious to accommodate the claimant before her retirement in December 2010 and Management gave a commitment to make every effort to do so.
In all the circumstance of this case, the Court decides that Management should make strenuous efforts to ensure that the claimant’s position is regularised before her due retirement date on 16th December 2010. If such regularisation is not achieved by agreed means before her retirement date then the Court decides that her pension entitlement should be subsequently amended to reflect the appropriate point on the Grade IV salary scale.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th April, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.