FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY O' RIORDAN & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of a Rights Commissioner's Recommendation R-098574-IR-10/MMG.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's recommendation. The dispute relates specifically to the Worker's claim for regularisation of the post she previously held on a long-term basis within the organisation and for retrospective application of incremental credit. The Worker commenced employment with the Health Service Executive (HSE) in 1990 and remained an employee of the HSE up until the time of her retirement in December 2010. During the course of her employment, the Worker was seconded to a position in the Irish National Health Promoting Hospitals Network and was later appointed to the position of Director, at an equivalent salary to that of a Grade VIII in the HSE. The Worker remained in this position until such a time as the National Health Promoting Hospitals Network integrated into the HSE as part of a re-structuring initiative. The decision was taken to allow the Worker to remain at a Grade VIII equivalent salary although at this point it was paid to the Worker in an acting capacity. The Worker on several occasions sought regularisation of her position however the Employer contended that it was not in a position to do so.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 24th November 2011, the Rights Commissioner issued her Recommendation as follows:
"It is my recommendation that the Claimant's lump sum and pension rights be reviewed taking into consideration the increment points that should have applied to her role v the static acting point and issued to her.
In relation to the aspect of perhaps denied income I recommend that the Claimant be awarded a once-off compensatory sum of €10, 000.00".
On the 7th December 2011, 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 2nd March, 2012.
WORKER'S ARGUMENTS:
3. 1. The Worker contends that several applications for regularisation of her post were made to her former employer.
2. It is the Worker's claim that her income and pension entitlements were significantly affected as a result of the employer's refusal to regularise her post.
3. The Worker is of the view that she is entitled to incremental credit to be applied to her previous role and is currently seeking the retrospective payment of this.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer asserts that the Worker was in a seconded position that was not of a permanent nature.
2. The Employer maintains that it was not in a financial position to regularise the Worker's post and furthermore it did not have the authority to do so.
3. The Employer contends that as is the standard practice once a secondment period has elapsed, the Worker should have returned to her substantive post however in this case she was allowed to remain on a Grade VIII equivalent salary in an acting capacity.
DECISION:
The case comes before the Court pursuant to Section 13(9) of the Industrial Relations Acts 1946 – 1990 and has been decided in that context only.
On the basis of the information provided and documents submitted by both parties, the Court finds that, on the balance of probabilities, the worker involved was aware that she returned to the HSE in 2006/2007 in an acting grade 8 post and sought to have this position regularised over the following years. In this regard she was in no different a position to a large number of staff in acting positions who were subsequently caught by the Government embargo on recruitment and promotion.
Accordingly the Court would normally take the view that this dispute should be settled in the context of any general review of staff in long term acting grade 8 posts.
However in this case the worker chose to avail of an enhanced early retirement scheme that provided exceptional arrangements in her case.
The Court normally takes the view that workers that opt for voluntary redundancy or voluntary early retirement accept the enhanced terms in full and final settlement of all outstanding industrial relations claims. The Court sees no reason to depart from this practice in this case.
The Rights Commissioner’s recommendation is set aside. The appeal is allowed.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
27th March 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.