FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY SIPTU / LAPO) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner R-090122-Ir-10/JT
BACKGROUND:
2. The worker, who is graded as an Executive Parks Superintendent (EPC) has been acting as Senior Executive Parks Superintendent (Senior EPC) since July, 2002. He had previously acted as a Senior Executive Landscape Architect from December, 2000, to 2002. The Union is seeking that the worker receives all appropriate increments he would have received if he had been working in the grade on a permanent basis. The Council's case is that, as per Department of Environment, Heritage and Local Government (DEHLG) Circular EL 02/2010 dated 8th September, 2010, it can only backdate increments to 18th February, 2009. The worker is also seeking permanent appointment to the position of Senior EPC.
The case was referred to a Rights Commissioner and a hearing took place on 16th June, 2010. At that time the worker was on point 3 of the Senior EPC scale as per DEHLG Circular EL 08/2005. Since the application of DEHLG EL 02/2010 he is on the 6th point of the scale. The Rights Commissioner's recommendation is as follows:
"I have considered the submissions and arguments put forward by both parties. The fact that this claimant has been in an acting post since the year 2002 he has behaved in a reasonable and fair manner and will continue to work along side his colleagues who enjoy better remuneration than he does for the same similar types of responsibility.
I accept that the council itself does not have the authority to hold a competition for a permanent appointment to this post. Yet this is grossly unfair to the claimant in all the circumstances that have been submitted. I am also aware that in other sectors of the public sector people who have been acting up in posts in the long term have received increments while in situ. Therefore, it is my recommendation that the claimant receive all appropriate increments that he would have received had he been in the position in a permanent basis. However, I acknowledge that councils right that they have yet to be allowed to make a permanent appointment to this post. I still believe the claimant is entitled to remuneration levels for carrying out the post at the same level of responsibility as his colleagues who are in a permanent position".
Both Sides appealed the recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969, - the Council on the 11th November, 2010, and the Union on the 15th November, 2010.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner supported the Union's case that the worker should be paid all appropriate increments backdated to 2000 so that he would not be treated less favourably that his permanent equivalent colleagues.
2. The application of EL 02/2010 would disadvantage the worker in a number of ways; he would not to be paid at the same level as his colleagues although he continues to do like work. He would remain on point 6 of the Senior EPC scale instead of Long Service Increment 2 (LSI 2) where he should be if his service is taken into account, a difference of €7,000 per annum.
3. There is no objective reason for maintaining the post as an acting one. This has been acknowledged by the Council which has recently sanctioned the filling of the post on a permanent basis.
COUNCIL'S ARGUMENTS:
4. 1. The Council is bound by the DEHLG circulars, both of which it has applied to the worker. As a result the worker advanced from the 3rd to the 6th point of the scale in November, 2010, and he also received over €7,000 in arrears. He will continue to gain incremental credit for the duration of his acting in his current position.
2. In regard to the worker's claim for promotion to a permanent position, the Council has been subject to the Department of Finance moratorium on staffing in the Public Sector. However, the Council has received sanction from the DEHLG to hold a competition to fill the worker's post on a permanent basis in February, 2011, by way of confined competition. The worker is available to apply for the post.
DECISION:
Both sides appealed a Rights Commissioner’s Recommendation, which recommended that the Claimant who had been acting up as Senior Executive Parks Superintendent since 2002 should receive all appropriate increments that he would have received had he been in that Grade on a permanent basis.
The Claimant appealed the Recommendation on the basis that the Rights Commissioner had failed to recommend regularisation of his acting up position on a permanent basis.
The Council appealed the Recommendation on the basis that it had no authority to pay the recommended increments and that it was not in a position to appoint the Claimant to a permanent position as Senior Executive Parks Superintendent.
The Union on behalf of the Claimant, sought application of LSI 2 to the Claimant in recognition of the acting-up roles he undertook, both as Senior Executive Landscape Architect between 2000 – 2002, and as Senior Executive Parks Superintendent since 2002.
The Council informed the Court that it has now been granted sanction to fill a permanent post at Senior Executive Parks Superintendent by confined competition; this process will commence in February, 2011.
Having considered the submissions of both sides, the Court notes that the Council has correctly applied Department of the Environment, Heritage and Local GovernmentCircular EL 08/2005andCircular EL 02/2010to the Claimant and, accordingly, he was placed on point 6 of the Senior Executive Engineer Scale from 1st June, 2010, with retrospective application of increments back to 18th February, 2009. The Court understands that the Council had no discretion to apply any further incremental credit to the Claimant; this was no reflection on his capacity to undertake the acting up roles over the lengthy period in question. The Council stated that as a valued member of staff the fact that he was given the opportunity to act in a higher position for 10 years reflects the trust and high esteem in which he was held.
The Court finds that as the Council was compelled to operate within the constraints of Government Circulars, it was unable to concede the Claimant’s claims and, accordingly, the Court upholds the Council’s appeal and overturns the Rights Commissioner’s Recommendation. The Claimant’s appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th February, 2010.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.