FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE DUBLIN NORTH EAST - AND - A WORKER (REPRESENTED BY SMYTH O'BRIEN HEGARTY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Acting-up allowance.
BACKGROUND:
2. The Claimant is employed as a Grade IV Officer by the Health Service Executive (HSE). She commenced employment in 1998 on a temporary basis and was made permanent in 1999. In 2001 she was requested to act in a Grade V capacity on a week on week off basis ,whilst working in a Grade IV capacity every alternate week from 2001 to 2005 at St. Mary's Hospital, Phoenix Park and was paid a pro rata acting up allowance on top of her Grade IV salary.
On the 1st June 2005 the Claimant was transferred to the Nursing Home Support section in the HSE Dublin North East area and since then has been acting in a Grade V position on a full-time continuous basis.She has received the standard acting up allowance on top of her Grade IV salary.
In July 2009 the Claimant wrote to the Assistant National Director of Human Resources requesting that she be placed on the appropriate Grade V scale with full incremental credit in respect of her previous acting service from 2001. In support of her claim she pointed out that she believed that there were precedents to support her claim.
In response the Claimant was informed that there is no precedent for entitlement to incremental credit for acting service for clerical and administrative grades and that her request that she be placed on the appropriate point of the Grade V scale, and be granted incremental credit, was refused.
The issue could not be resolved at local level and the Claimant referred her claim to the Labour Relations Commission. The HSE did not agree to this process as its position is that the issue is being dealt with nationally through negotiations with unions. The Claimant subsequently referred the matter to the Labour Court on the 15th December 201, in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the recommendation of the Court. A Labour Court hearing took place on the 26th April 2011.
WORKER'S ARGUMENTS:
3. 1. The Claimant contends that she was not advised of her right of appeal or her right to pursue the matter further under the HSE's grievance procedures.
2. The Claimant understands that the Public Service Agreement 2010-2014 provides for a mechanism to be agreed between the unions and the HSE to regularise the position of those in long-term acting position. No indication has been given to the Claimant as to how or when this will happen.
3. The Claimant contends that, by virtue of the fact that she has been acting Grade V on a continuous basis since 2001, she has already acquired Grade V status by default and that she is entitled to be paid the appropriate salary for the work she has been doing, particularly in the full-time Grade V post she has held since 2005.
MANAGEMENT'S ARGUMENTS:
4. 1. It is Management's position that remuneration in respect of persons acting up in a higher capacity is governed by the terms of the Department of Health Circular No. 10/71. This circular provides,inter alia,that any person appointed to act up in a higher capacity is entitled to receive an additional monetary allowance.
2. It is not HSE policy to award incremental credit to staff in Clerical/ Administrative grades that are in "acting positions." While this position is currently under review, to date the situation has not changed.
3. Negotiations between the HSE and the unions are at an advanced stage and the outcome of these negotiations will be applied to the claim before the Court today.
RECOMMENDATION:
The Claimant has been acting in a higher role for some 11 years. It could never have been envisaged that an employee would remain in an acting capacity for a duration of this magnitude and the requirements of basic fairness dictate that her position be regularised.
The Court was told that discussions between the HSE and Unions representing its staff are at an advanced stage on regularising the positions of those in long-term acting positions. In the Court's view, while the Claimant's position is anomalous, it cannot be dealt with in isolation from that of others in a similar position. In that regard the Court cannot pre-empt the outcome of the national discussions on the treatment of staff engaged in long-term acting-up roles.
The Court recommends that the Claimant's position be dealt with by application of any agreed arrangements resulting from the talks referred to and that her position be given priority having regard to the length of time in which she has been acting in the higher role.
Signed on behalf of the Labour Court
Kevin Duffy
3rd May, 2011______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.