FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST VINCENT'S UNIVERSITY HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner R-087617-Ir-09 JOC.
BACKGROUND:
2. The following is the Union's case: the worker commenced a Consultant Academic appointment in 1998 as a Consultant Senior Lecturer in the Mater Misericordiae Hospital/UCD performing 8 clinical sessions and 3 academic sessions. He was employed on a regular Hospital Consultant contract and in addition received a "top-up". In 2001 UCD and St. Vincent's Hospital (the Hospital) advertised for a Professor in Clinical Psychology and in time the worker was offered the post in 2002. The post was listed as Professor, School of Medicine & Medical Science in St. Vincent's/HSE/UCD (5 clinical sessions, 3 clinical sessions, 3 academic sessions, i.e. 8 clinical/3 academic). However, letters from HSE and UCD in 2005 agreed that 6 of the worker's 11 sessions could now be termed as academic sessions. The worker received an academic promotion to Professor but no financial compensation despite his workload increasing considerably (details supplied to the Court). The worker pointed out that his new contract as a Professor was exactly the same as his post of Consultant Senior Lecturer. Despite proposal to change the worker's contract to an Academic Contract and an appropriate salary the matter could not be resolved (4 academic sessions are need for an Academic Contract). The Union is seeking retrospection of the Academic Contract/remuneration to 2002.
The Hospital's main argument is that the claim is cost increasing and thus debarred under the Croke Park Agreement.
The case was referred to a Rights Commissioner and his recommendation was as follows:
"In all the circumstances I cannot support the claim and I uphold the respondent's position."
The worker appealed the recommendation to the Labour Court on the 16th August, 2011, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 22nd November, 2011.
UNION'S ARGUMENTS:
3. 1. The Professor of Psychiatry at the Mater Hospital was employed on an Academic Contract despite the fact that her post was equivalent in nature to the worker's. A second person was also successful in gaining an Academic Contract based on a sessional split of 8 clinical/3 academic.
2. The worker signed a new Consultant Contract in 2008 but made it clear that he would still be pursuing his outstanding claim for an academic contract which dated back to 2002. The Hospital at no time outlined any difficulty with the worker being granted an Academic Contract until 2009.
HOSPITAL'S ARGUMENTS:
4. 1. The worker signed the contract in full knowledge of what was involved. Concession of the claim would lead to huge extra costs for the Hospital and ultimately the health service. The worker is already being generously remunerated in light of his salary and a stipend of €6,466.
2. Clause 1.27 of the Croke Park/Public Service Agreement 2010-2014 states that no cost-increasing claim can be made or processed. The worker's claim is clearly covered by the Agreement.
DECISION:
In this case the employer relies upon Clause 1.27 of the Public Service Agreement 2010-2014 in raising a preliminary objection to this claim being entertained.
It is not disputed that this is a cost increasing claim within the meaning of the PSA. That Agreement precludes Trade Unions and employees from making or processing cost increasing claims during the currency of the Agreement. Except in the case of minor claims this provision contains no exceptions.
The claim before the Court is not a minor claim and, accordingly, the Court is obliged to apply the terms of the PSA. In that regard, while the claim predates the conclusion of the Agreement the reference to the Court clearly constitutes a processing of the claim.
In these circumstances they can see no basis upon which it can allow the Union's appeal, and it is disallowed, and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
30th November, 2011.______________________
CON.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.