FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal Of Rights Commissioner's Recommendation R-107047-Ir-11/JW.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's RecommendationR-107047-Ir-11/JW. The dispute relates specifically to the Worker's claim for incremental credit for a period of his employment spent in an acting-up position from June 2004 to May 2008. The Worker is currently employed as a Grade VI Ambulance Officer with the Health Service Executive (HSE). Prior to his appointment to this position, the Worker spent a period of approximately four years in an acting-up Ambulance Officer role. The Worker is seeking the retrospective application of incremental credit in recognition for his time spent carrying out the acting-up position, contending that credit was awarded to colleagues in an analogous role. The Employer rejects the Worker's claim, arguing that the Worker was remunerated appropriately during his time spent acting up and he is not entitled to incremental credit.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd September 2011, the Rights Commissioner issued his Recommendation as follows:
"I recommend that the Claimant be granted incremental credit for the period he spent in the "acting up" role in the Grade VI position, and that he be credited with 4 increments to cover this period.
These increments should be credited within 6 weeks of the date of this recommendation".
On the 7th October, 2011 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 13th January, 2012.
UNION'S ARGUMENTS:
3. 1. The Employer has treated the Worker in an inequitable manner by refusing to apply incremental credit.
2. The Union contends that a precedent exists within the HSE and incremental credit has previously been applied to workers in similar circumstances.
3. The Worker carried out his current role, albeit in an acting capacity, for a period of four years before his permanent appointment to the position. It is the Union's claim that the Worker is entitled to incremental credit for this period.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker received an acting-up allowance for the duration of time spent in the acting-up position.
2. The Worker was not entitled to incremental credit while carrying out the acting-up role.
3. The Employer is not in a financial position to concede to any cost-increasing claim.
DECISION:
This case comes before the Court by way of an appeal, pursuant to Section 13(9) of the Industrial Relations Act 1969, by the HSE against Rights Commissioner Decision no r-107047-ir-11/JW which upheld a complaint that the Worker was entitled to be assimilated to the salary scale at a higher point than was applied on his appointment to the post of Ambulance Officer in May 2008.
The Court has carefully considered the extensive oral and written submissions of both parties to this dispute. The Court has also considered the additional information provided, at the Court’s request, by the HSE after the hearing along with the Union comments thereon.
The Court notes that the HSE does not appear to have been wholly consistent in the manner in which it has allowed or refused credit on appointment to permanent posts. In particular the Court notes that the HSE has allowed incremental credit to certain staff employed in “Senior Administrative Grades” in the HR and Finance Departments on appointment to their various positions.
Inconsistencies of this nature, unless they are transparently justifiable, particularly where they favour senior staff in departments charged with overseeing the implementation of such policies, undermine management’s credibility on these issues and brings the entire procedure into disrepute.
However no basis has been presented to the Court that would justify a departure from established practice in this case.
Accordingly the Court finds that the Complainant, on his appointment to the post of Ambulance Officer, was treated in a manner consistent with the normal rules that apply in these cases. The Court further finds that Management should meet with the Union and explain the policy basis upon which the apparent exception to the rule was justifiable in the case of the appointed staff in the HR and Finance Departments.
On this basis the appeal is allowed. The Rights Commissioner’s Recommendation is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
30th April 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.