FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE MID WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-126078-ir-12/GC
BACKGROUND:
2. This case is an appeal by the Union of Rights Commissioner's Recommendation No: r-126078-ir-12/GC. The parties are in dispute in relation to issues concerning the workers employment with the HSE. The Union is seeking i) The calculation and retrospective payment to 20th June 2005 at Executive Chef level, ii) Pension rate of pay from 9th February 2010 to 9th April 2011, iii) Payment of 4 hours per week as per Labour Court Recommendation No:19014 and iv) Full payment of all wages from 9th April 2011 to 3rd January 2012.
The employer's position is that the worker did not possess the required qualification for the post and that while she did subsequently attain the qualification the retrospective appointment to the post as sought was not appropriate. She was appointed on the 25th April 2012 with retrospection to 28th May 2007.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on 12th March 2013 and found that in relation to i) The appointment of the worker to the Executive Chef role on 25th April 2012 backdated to May 2007 was reasonable and no further retrospection was appropriate. ii) No retrospection on the pension rate of pay was warranted, iii) No entitlement existed to the extra four hours payment per week from January 2007 to September 2008 as the offer made by management was in line with the terms of LCR19014 and iv) The worker should be paid an additional four months retrospective pay in compensation for the eight month delay in arranging a return to work meeting held in December 2011 following her being declared medically fit to return to work in April 2011.
On the 8th April 2013, the worker 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 22nd October 2013.
UNION'S ARGUMENTS:
3 1 The worker is seeking retrospective payment to 20th June 2005 based on a 39-hour working week as this is the position that she applied for and was successful in obtaining. Management did not allow the worker to take up the post as it claimed she was not qualified for the post. This is untrue and the appropriate retrospection should be paid to the worker.
2 Management withdrew the pension rate of pay from the worker as it claimed she no longer qualified for payment under the rules of the scheme. The worker had indicated on a number of occasions that she was willing to attend a case conference meeting relating to her return to work yet Management did nothing on the issue for several months.
3 The additional four hours pay per week should be paid to the worker as she worked the additional hours on a temporary basis only yet contends that she had an entitlement to payment for the extra hours from January 2007 to September 2008.
4 The worker is seeking all payments due from the date she was deemed fit to resume work until the period that her salary recommenced on the basis that the delays in her returning to work were caused by management despite her efforts to return to work as quickly as possible.
MANAGEMENT'S ARGUMENTS:
4 1 The worker was appointed with effect from May 2012 having obtained the required qualification with retrospection to 28th May 2007 based on the actual number of hours worked (28 hours per week). It is not appropriate to pay any additional retrospection as the additional eleven hours were never worked.
2 Management ceased paying the pension rate of pay to the worker as she failed to qualify for the payment in line with the rules of the HSE's sick pay scheme, Management contend that it acted appropriately and in line with its procedures on this issue.
3 The worker was offered the additional hours in another location but did not accept the offer as she was already working 39 hours per week albeit on a temporary basis. Management contends that it complied with LCR19014 in this regard.
4 Management made every effort to ensure that there were no further HR/IR issues in existence prior to allowing the worker return to work. In the circumstances and on the basis of difficulties that had already occurred, it was justified in its actions on this issue.
DECISION:
This is an appeal by the Union on behalf of a worker against a Rights Commissioner’s Recommendation dated 12thMarch 2013 which found against most of her claims for the way she was treated by the HSE Mid-West since she applied for a post as Executive Chef in 2005. There was a number of aspects to her claim. The Rights Commissioner rejected a number of aspects of her claims and found partially in her favour in other aspects of her claims. She recommended that the Claimant should be reimbursed for four of the eight months during the period when she was deemed fit to return to work between 9thApril 2011 and 3rdJanuary 2012. The Claimant appealed all aspects of the Rights Commissioner’s Recommendation.
The Court has given careful consideration to the oral and written submissions of both sides.
There were four aspects to the appeal before the Court:-
- (i)Retrospective Payment of the Grade of Executive Chef from 20thJune 2005 at 39 hours per week as advertised
The Court notes that the matter of retrospection back to 20thJune 2005 was the subject of a previous Rights Commissioner hearing in December 2006/April 2007. The Rights Commissioner at that time issued his Recommendation on 28thMay 2007 and did not recommend in favour of such retrospection. That Recommendation was not appealed. Consequently the Court has no jurisdiction to hear this aspect of the appeal before the Court.
The Court notes that the Claimant was appointed to the role as Executive Chef on 8thMay 2012 and paid retrospection on all hours worked back to 28thMay 2007 (the date of the 2007 Rights Commissioner Recommendation). Periods of sick leave were discounted for the purposes of calculating retrospection.
In her appeal of the 2013 Rights Commissioner Recommendation, while the Claimant acknowledged that she was paid retrospection based on the number of hours she actually worked (28 hours per week), she now sought payment based on the advertised 39 hours which was the post she had successfully applied for in 2005 but which she claimed she had not been allowed to take up due to a requirement on her part to attain a qualification.
Having considered the submissions made the Court is of the view that the retrospection paid covering the hours which she actually worked was appropriate and reasonable in the circumstances and accordingly rejects this aspect of the appeal.
- (ii)Pension Rate of Pay from 9thFebruary 2010 until 9thApril 2011
The Claimant stated that due to the difficulties she experienced with Management following her application for the post of Executive Chef in 2005, she went out on sick leave on 9thJune 2009. She was placed on sick pay from 9thJune 2009 until 12thAugust 2009 and when that benefit was exhausted she was then paid a pension rate of pay in accordance with the HSE Sick Pay Scheme. This payment ceased on 9thFebruary 2010 as Management deemed that she did not meet the criteria for payment.
Management stated that under the Scheme the pension rate of pay is paid during a period of absence on sick leave where the Occupational Health Physician has confirmed the medical situation and where there is a reasonable expectation that the employee will be in a position to resume his/her duties including an indication as to the duration of the continued absence.
In this case Management stated that on 2ndand 5thMarch 2010 it received a report from the Occupational Health Physician that there were persisting and significant IR/HR issues pending in the case and she sought a case conference on the matter. This case conference did not take place until 19thDecember 2011 after which the Claimant was deemed fit to return to work.
On 4thand 9thMarch 2010 the Claimant confirmed that she had no difficulty attending the case conference recommended by the Occupational Health Physician. In October 2010 the Claimant, in seeking such a case conference, reiterated her position that she had had no referral from Management for further medical assessment since her visit to the Occupational Health Physician on 9thFebruary 2010. She confirmed that there were no new IR/HR issues and that she was anxious to return to work. This did not happen and eventually due to contact at the most senior level between the Union and Management the case conference eventually took place in December 2011. The Claimant took up the position as Executive Chef on 8thMay 2012.
The Court is of the view that there were no material changes during the period when the Claimant was removed from the pension rate payment under the Sick Pay Scheme. The Claimant included in her appendices to her submission to the Court a report dated November /December 2009 from the Occupational Health Physician supporting her application for pension rate of pay while her workplace difficulties which needed to be addressed were ongoing and stating that no further medical assessments were being offered in the interim.
The Court notes that no new IR/HR issues were raised, none were identified to the HSE and this was confirmed in October 2010 yet her pension rate of pay was not restored. The Claimant had produced a medical certificate confirming her fitness to return to work in April 2011 yet no action was taken until December 2011. In such circumstances the Court is of the view that pension rate should not have ceased and recommends that the pension rate of pay should be paid for the period claimed.
- (iii)Payment of 4 hours per week as per Labour Court Recommendation No: 19014
Management stated that the Claimant was offered 39 hours per week in the Regional Maternity Hospital on 8thSeptember 2008 following Labour Court Recommendation No: 19014 which concerned a claim by Chefs working reduced hours who sought to return to full-time working hours in accordance with the Flexible Working-Time Scheme. The Claimant declined the four extra hours involved as she was temporarily working 39 hours at the time in the Mid-Western Regional Hospital.
Having considered the position the Court is of the view that Management were in compliance with the Labour Court Recommendation and accordingly does not find in favour of the Claimant’s appeal of this aspect of her claim.
The Rights Commissioner held that the temporary nature of the extra hours she currently works should be addressed and as soon as it is feasible the hours should be made permanent. The Court upholds the Rights Commissioner’s recommendation in this regard.
- (iv)Full payment of all wages from 9thApril 2011 to 3rdJanuary 2012.
The Claimant sought full payment of all wages at Executive Chef Grade from 9thApril 2011 being the date she was declared medically fit to resume work to the date her salary recommenced.
Management stated that while she was certified fit to return to work in April 2011 it was anxious to ensure that there were no new IR/HR issues which needed to be addressed before it would permit her to return to work. This resulted in a considerable delay.
The Court is satisfied that an unnecessary and avoidable delay occurred in this period which resulted in the Claimant being at a substantial financial loss and therefore the Court recommends that she should be paid for the period from 9thApril 2011 to 3rdJanuary 2012.
Conclusion
The Court is of the view that following the Rights Commissioner’s Recommendation in May 2007 there was a failure by Management to handle the Claimant’s situation appropriately. The Rights Commissioner had recommended that the parties should meet to discuss the necessary arrangements to allow the Claimant to achieve the qualifications required in order for her to take up the post as Executive Chef which she had successfully attained in 2005. This was not carried out and the Claimant was obliged to avail of 26 days’ annual leave in order to achieve the qualification. Having achieved the necessary qualification in January 2008 there was an expectation that by no later than May 2009 she would be appointed to the Executive Chef position. However, it was May 2012 before she was permitted to take up the post. Due to the unsatisfactory manner in which this was carried out, in addition to the above decisions on the appeal before the Court, the Court recommends that the Claimant should be paid a payment of €5,000 compensation for the distress caused.
Court’s Decision
For the reasons set out above the Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th November 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.