FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN / MID-LEINSTER - AND - A WORKER (REPRESENTED BY CALLAN TANSEY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-076068-ir-09/JT
BACKGROUND:
2. The Claimant began her career in June 2002 as a permanent Clerical Officer in the HR/Payroll Department of the Midland Regional Hospital Mullingar. In May 2004 she was moved to an Acting Grade IV in the new computerised payroll section for an initial period of two months. The 'acting-up' contract, however, was renewed on a number of occasions for a total period of four years and did not end until July 2008. The Worker is seeking to be made permanent in her 'acting-up' roll, Management says that it cannot sanction such a claim.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 19th April 2010, the Rights Commissioner issued his Recommendation as follows:-
"In regard to the failure of the respondent to pay increments for the Acting-up Grade after the first year this matter should be rectified immediately and any outstanding increments and back money paid to the claimant....In recognition of the contribution that the claimant brought to her roll while acting-up... I award the sum of €7,500."
On the 20th May, 20 the Employer appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 8th June, 2011.
EMPLOYEE'S ARGUMENTS:
3. 1. The claim is for the Worker to be reinstated as a Permanent Grade IV Payroll Supervisor.
2. The Worker was encouraged to attended night classes in order to gain qualifications which would ultimately benefit the Employer. She spent four years studying for a BA Hons. Degree in Healthcare Management.
3. Despite representations the position was filled by means of an internal transfer.
EMPLOYER'S ARGUMENTS:
4. 1. The circumstances which gave rise to the Worker being appointed to an 'Acting-Up' position were not unique. To the contrary she is one of a very significant number of staff throughout the wider HSE for reasons such as to cover annual leave, sick leave or where a post has been re-graded pending the filling of a vacancy.
2. The Worker was not 'Acting-Up' to a 'fillable vacancy' under the recommended criteria hence she cannot be treated more favourably than her colleagues in the same situation.
DECISION:
The Court fully understands the Claimant’s disappointment at not being permanently appointed to the higher grade in which she had acted. The Court also accepts that the temporary acting appointment had extended over an inordinately long period.
Nevertheless the Court cannot see how the HSE can be faulted for not regularising her position having regard to the constraints in relation to promotions under which it
currently operates and the requirement that such posts can only be filled by competition or lateral transfer. Moreover, it is clear that the Claimant’s position is by no means unique and any concession made in her case would have repercussive effects in respect to others in similar circumstances.
Having regard to these considerations the Court cannot uphold the Rights Commissioner’s Recommendation that the Claimant be paid compensation and this aspect of the Recommendation is set aside. The other aspects of the Rights Commissioner’s Recommendation are affirmed.
To that extent the Recommendation of the Rights Commissioner is varied and the appeal is allowed.
Signed on behalf of the Labour Court
Kevin Duffy
27th June, 2011______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.