FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OFFICE OF TOBACCO CONTROL (OTC) - AND - A WORKER (REPRESENTED BY ASSOCIATION OF HIGHER CIVIL AND PUBLIC SERVANTS) (AHCPS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Hearing arising from AD1081.
BACKGROUND:
2. This case was before the Labour Court in AD1081. The worker had referred her case to a Rights Commissioner who found as follows:
"Under the above section of the Act I have no jurisdiction to hear the complaint therefore the complaint cannot proceed under this Act."
The worker appealed the case to the Labour Court which overturned the Rights Commissioner's recommendation and has resulted in her substantive case being heard as follows:
The worker commenced employment with the OTC in August, 2001, as a Communications Executive on a temporary contract at Higher Executive Officer (HEO) level. She was appointed Communications Manager (permanent post) in December, 2002. Her salary was Grade 7 HSE scale and in December, 2004, she was on the final point of the Grade 7 scale. The Union's case is that the worker operated in a management capacity for over 16 months from 23rd May, 2005, to October, 2006, - 8 months acting APO and 8 months acting PO (CEO) - but that this service was not recognised by the OTC when appointing her to a substantive management post as APO on 9th October, 2006. This has consequently impacted on her pay and progression prospects. A new CEO took up duties on 20th September, 2006. From that date until her appointment on 9th October, 2006, the worker's salary had reverted to Grade 7 level though she claims that she was not made aware of this by the OTC. She believes that she should have reverted to an acting APO position. It is the Association's contention that the worker's date for incremental purposes is 23rd May, 2005, which recognises her 16 months' service at APO and PO level and that she now be placed on the 6th point of the APO scale, she currently being at the 5th point of the scale.
The case was referred back to the Labour Court and a hearing took place on the 15th December, 2010.
ASSOCIATION'S ARGUMENTS:
3. 1. The worker did not revert to the role of Communications Manager for the 13 days from 20th September, 2006, to 9th October, 2006. She did not resume her previous activities or responsibilities at Grade 7 level but instead operated in a management capacity performing duties as directed by the CEO. The Association believes that the Grade 7 post ceased to exist when the worker was promoted to acting APO on 23rd May, 2005.
OTC'S ARGUMENTS:
4. 1. The worker did not hold a higher-duty allowance at the time of her promotion to her substantive post on 9th October, 2006. She had reverted to her Grade 7 post and salary on 20th September, 2006. The OTC has correctly interpreted Department of Finance Circulars 34/77 and 38/07 in that the worker's incremental date is the anniversary date of her promotion i.e. 9th October, 2006.
DECISION:
This is an appeal taken by the Union on behalf of the employee against a Recommendation of the Rights Commissioner who found that the claimant was not a “worker” as defined by Section 23 of the Industrial Relations Act 1990 and consequently held that he had no jurisdiction to hear her claim. The Court found as a preliminary matter that the Claimant was a “worker” for the purposes of the Industrial Relations Act 1990 and accordingly held that it had jurisdiction under the Industrial Relations Acts 1946-2004 to hear her case.
The claim relates to a dispute between the parties concerning the placement of the Claimant on the appropriate incremental point of the Assistant Principal scale on her promotion to that scale on 9th October, 2006.
Having considered all aspects of this case the Court is satisfied that due to the particular circumstances in this case the Claimant should be placed on point 6 of the Assistant Principal Officer scale with effect from 1st January, 2011, and furthermore from this date forward the 1st January should be the date when she receives any further increments due.
The Rights Commissioner’s Recommendation is overturned.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th January, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.