FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE WEST - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-099629-ir-10- POB.
BACKGROUND:
2. This is an appeal by the employer of Rights Commissior Recommendation No: r-099629-Ir-10-POB. The issue concerns a worker who was previously employed as a Public Health Nurse and who subsequently accepted a post of Adult Therapist/Counsellor in 2004. The worker is seeking that the concession/privilege days which formed part of her terms and conditions of employment as a Public Health Nurse be transferred to her current position. Management's position is that the new permanent post which the worker commenced in 2004 does not attract concession/privilege days.
The matter was referred to a Rights Commissioner for investigation. His Recommendation issued on the 4th October, 2011 and found that the worker's claim be limited to three years and that she be given time off in lieu if she had been disadvantaged in comparison to other identifiable workers. The Rights Commissioner also recommended that the situation be governed in future by any national agreement that may be reached on the issue.
On the 2nd November 2011, the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 7th June, 2012
WORKER'S ARGUMENTS:
3 1 The concession/privilege days in question had previously been applied while carrying out the Counsellor/Therapist Role.
2 There were many other staff throughout the Health Service Executive that were and remain in receipt of concession/privilege days.
MANAGEMENT'S ARGUMENTS:
4 1 The worker retained the concession/privilege days while temporarily carrying out the role of Counsellor/Therapist. This occurred because the Public Health Nurse terms and conditions of employment were retained until the worker was permanently assigned to the post.
2 The issue of concession/ privilege days has been dealt with at national level and is applicable throughout the public service. In circumstances where workers have less than 32 days annual leave, the concession days are included as annual leave. They will be forfeited completely in circumstances where the existing annual leave entitlement is already in excess of 32 days.
3 This claim is at variation with Section 1.27 of the Public Service Agreement which precludes cost-increasing claims during its lifetime.
DECISION:
The Court finds that the worker in this case accepted an offer of employment as a Counsellor/Therapist in 2004 on the terms and conditions of that grade which did not include an entitlement to privilege/concession days.
Accordingly, the Court upholds the appeal.
The Rights Commissioner's recommendation is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
17th July 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.