FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LOUTH COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner R-077114-IR-09/JW
BACKGROUND:
2. The worker was originally employed on a two-year temporary contract at the grade of Executive Engineer with the Council on June, 2007, covering for a permanent Executive Engineer who had transferred to another section. He was placed on the 6th point of the scale. In 2008 he applied for and was offered a permanent contract at the lower grade of Assistant Engineer. He was advised that he would start on the third point of the Assistant Engineer salary scale. This represented a major reduction in pay for the worker. The Union's case is that the worker decided to accept the post on the understanding that he would be challenging the reduction in pay. The Council claims that the worker was put on the correct point of the scale as per Circular Letter E.L 1/81.
The case was referred to a Rights Commissioner and his recommendation was as follows:
"I find that the complaint is not well-founded. The claimant was offered a permanent contract in line with salary guidelines for this post. He was afforded the opportunity to consider the offer. He decided to accept the offer.
The fact that he was paid a higher salary while on a Fixed Terms Contract was totally at the discretion of the employer. In relation to the permanent post accepted by the claimant the employer is only obliged to pay the correct point of the scale.
The employer has complied with this requirement".
The Union appealed the recommendation to the Labour Court on the 8th December, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 5th May, 2010.
UNION'S ARGUMENTS:
3. 1. The Council ignored Circular Letter E.L. 1/81 when it offered the worker the Executive Engineer's post at point 6 of the pay scale as he had less than the 8 years' experience required. It then used the same circular to radically reduce his salary when appointing him to the Assistant Engineer scale.
2. The Council has an obligation to continue him on the scale from point 6 and should do so by placing him on the top point of the Assistant Engineers' pay scale. The cost involved is relatively small.
COUNCIL'S ARGUMENTS:
4. 1. The worker was appointed to the correct point on the pay scale as per Circular Letters E.L. 5/67 and 1/81. In awarding him two additional increments in relation to his post graduate experience the Council acknowledged his previous experience. Again, this was in accordance with Circular Letter E.L. 1/81. His remuneration reflects his experience to date.
DECISION:
This is an appeal by the Union on behalf of an employee of a Rights Commissioner’s Recommendation, which found against his dispute with the Council’s decision to substantially reduce his salary. The Rights Commissioner found that the Council had applied the correct point of the scale to him when he applied for a permanent position as an Assistant Engineer in April, 2008.
The Union sought the maximum point of the scale on the basis that the claimant had been on a higher salary while on a temporary contract as an Executive Engineer with the Council, prior to his application for a permanent position as an Assistant Engineer. It held that his placement on point 3 of the Assistant Engineer’s scale failed to take account of his significant level of experience at a more senior engineering level, both with Louth County Council and previously with Dublin City Council.
Having considered the positions of both sides the Court accepts that the Council placed the claimant on the appropriate point of the scale in accordance with the rules laid down in Circular E.L. 1/81.
However, the Court is of the view that in the particular circumstances of this case, the Council should place the claimant at point 6 of the Assistant Engineer’s salary scale with effect from 1st June, 2010.
Accordingly, the Court varies the Right’s Commissioner Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th May, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.