FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FAS - AND - A WORKER (REPRESENTED BY AHCPS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Payment for loss of earnings.
BACKGROUND:
2. This case concerns a dispute between the worker and FÁS in relation to a claim for compensation. The Union (on behalf of the worker) is seeking that the worker be compensated for not being appointed to a Grade four position on his return from a leave of absence. The Union's position is that the worker accepted a Grade six position on his return but had two year's previous experience at a Grade four post prior to his leave of absence. In such circumstances the Union contends that the worker should have been appointed to the acting Grade four post that became available shortly after his return to work
Management's position is that the worker was aware when taking the leave of absence that as he had only served two years at Grade four, if no position at that level was available on his return, that he would revert to his previous grade (Grade six) until a suitable grade four position became available. Management contends that the worker was aware of this at the time and accepted those terms in taking the leave of absence.
On 3rd February, 2011 the worker submitted his claim in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on 16th June, 2011.
UNION'S ARGUMENTS:
3 1 The worker has lost approximately €80,000 as a result of management's failure to appoint him to a Grade four post, for which he was suitably qualified, when such a post became available in the organisation.
2 The worker was aware that he may temporarily be required to return at a lower grade until a post at his substantive grade became available. The worker accepted this but was not appointed to the Grade four post when it became available. Instead, a worker with less experience who had been acting up in the post was permanently appointed. This is unfair and unacceptable and has resulted in the worker incurring a significant loss of earnings.
MANAGEMENT'S ARGUMENTS:
4 1 The worker applied for leave of absence for personal reasons and was granted the leave. As he had only two years experience at Grade 4, he was aware that he may have to accept a lower grade if no suitable vacancy at his original grade existed on his return. The worker accepted these conditions which are in line with the organisation's policies and procedures.
2 The post the worker is claiming he is entitled to was advertised and a competition was held. This competition was also held in compliance with the organisations policies and procedures and the successful applicant had already been acting up in the post for a number of years and was seen as the most appropriate candidate for the position.
RECOMMENDATION:
The leave of absence agreement entered into between the Organisation and the Claimant provided that if no Grade 4 post was available at the time of his return he would be appointed to a Grade 6 post. The Court is satisfied that the organisation acted properly in its application of the agreement at the time of the Claimant's return.
A Grade 4 position became available, albeit on an acting basis, some months after the Claimant's return. Given that the Claimant had previously held a Grade 4 post it seems strange that he was not assigned to this post on an acting basis. In that regard the Court is satisfied that the filling of this post was tainted with unfairness. However, that occurred in 1993 and at this remove the Court cannot see how the matter can now be rectified.
Nevertheless, the Claimant has had an ongoing grievance in this matter for which there is some justification.
Having regard to all the circumstances of the case the Court recommends that the matter be now disposed of by the Organisation offering and the Claimant accepting an ex-gratia payment of €10,000 in full and final settlement of his claim.
Signed on behalf of the Labour Court
Kevin Duffy
13th July 2011______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.