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 GROARKE & PARTNERS SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation R-117912-IR-GC.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal ofRights Commissioner's Recommendation R-117912-IR-GC. The dispute relates specifically to the Worker's claim for regularisation of his post as well as retrospective payment of the financial losses incurred as a result of the Employer's failure to regrade his position in accordance with an agreement reached between the HSE and IMPACT trade union in May, 2005.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 9th May, 2012 the Rights Commissioner issued her Recommendation as follows:
"In all the circumstances of this case, I recommend that *the Claimant drop his claim for Grade VIII and that the HSE offer him a payment of €15,000 in full and final settlement of his claim".
On the 18th June, 2012 the Employer appealed the Rights Commissioner's 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 27th September, 2012.
WORKER'S ARGUMENTS:
3. 1. The Worker has been treated in an inequitable manner following the Employer's refusal to regularise his position and appoint him to a permanent Grade VIII role.
2. The Worker contends that there have been appointments to Grade VIII since the introduction of the Government moratorium on recruitment and promotion. The Worker therefore refutes that his claim is precluded under the terms of the Public Service Agreement 2010-2014.
3.The Worker has suffered and continues to suffer significant financial losses and is seeking compensation accordingly.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker's claim is cost-increasing and is precluded under the terms of the Public Service Agreement 2010-2014.
2. The Employer is bound by the terms of the PSA and is not in a position to appoint the Worker to a Grade VIII position in accordance with the current moratorium on recruitment and promotion.
3. The Employer is not in a position to award compensation to the Worker.
DECISION:
The matter before the Court concerns HSE Dublin Mid-Leinster’s appeal of a Rights Commissioner’s Recommendation, which found against the Worker’s claim for an upgrade to Grade VIII, however, she recommended that the Claimant should be paid a sum of €15,000 in full and final settlement of his claim. The Claimant also submitted an appeal of the Rights Commissioner’s Recommendation, however, it was made outside the six-week time limit prescribed by the Industrial Relations Acts 1946 - 2004.
In line with the normal practice of the Court, the parties are referred to as they were at first instance. Accordingly, the Worker is referred to as “the Claimant” and HSE Dublin Mid-Leinster is referred to as “the Respondent”.
The Respondent appealed the Recommendation stating that it was precluded under Clause 1.27 of the Public Service Agreement 2010 – 2014 from paying the recommended sum of €15,000 to the Claimant.
Counsel for the Claimant submitted that the Claimant’s entitlement to Grade VIII arose from the terms of the HSE/Impact Long Term Acting Agreement May 2005 (“the 2005 Agreement”) which provided for regularisation of staff who were acting-up on a long term basis on or before 1stJanuary 2002. As the Claimant was in such a position since 1999 he should have been appointed to Grade VIII since January 2005.
The Respondent stated that as the Claimant had not agreed to a draft job description for the new Grade VIII post there was a delay in processing the regularisation of his post and the issue was referred to an independent adjudicator for a binding decision. By the time the independent adjudicator issued his decision in favour of the Claimant, the Respondent was prohibited from appointing him to Grade VIII as the Moratorium on Recruitment and Promotions in the Public Service had come into effect.
Counsel for the Claimant rejected the Respondent’s contention that the independent adjudicator’s decision was issued post the Moratorium.
Following the Labour Court hearing by letter dated 1stOctober 2012, from Groarke & Partners, the Solicitors for the Claimant, put forward two alternative solutions to this issue, neither of which they contended were cost-increasing, and specified that no form of retrospection was being sought by the Claimant. The HSE Management responded to the proposals and rejected them stating that the applicable annual basic salary is that which pertains to the permanent substantive appointment held by the retiree at the date of his/her retirement.
Having considered the submissions of both parties and having examined the 2005 Agreement referred to, the Court is satisfied that the Claimant was entitled to be regularised in his post, at Grade VIII. This was further confirmed in a binding decision of the independent adjudicator. However, the Court cannot reconcile the question of whether that decision was conveyed to the Respondent prior to the introduction of the Moratorium or not. The Court is of the view in the unique circumstances of this case and based on the substantial weight of evidence in the Claimant’s favour, the proposals outlined in the Groarke & Partners, Solicitors, letter of 1stOctober 2012 should be accepted in full and final resolution of this case. The Court recommends that HSE should select one of the two options outlined in the letter and the matter should be fully resolved accordingly by no later than 31stJanuary 2013.
The Court varies the Rights Commissioner’s Recommendation accordingly and the Respondent’s appeal fails.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th December 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.