FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Recommendation r-134423-ir-13/JT.
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner's Recommendation No. r-134423-ir-13/JT. The issue concerns an employee of the HSE who was compulsorily redeployed to a different role within the organisation. On re-deployment the worker was to be regraded to a Clerical Officer Grade 3 role, yet the Union contends she remained on the domestic pay scale despite carrying out the role and function of a Clerical Officer Grade 3. The Union is seeking that the worker be retrospectively appointed to a Clerical Officer Grade 3 with effect from June 2007 and that she be placed on the appropriate point of that payscale.
Management's position is that the worker did redeploy but on her existing pay rate at the time (Domestic Band 4). Management's position is that the worker understood she was transferring on the existing rate of pay despite the change in duties. Management further contends that as part of the Haddington Road Agreement the worker will be regularised with effect from October 2013 but that retrospection cannot be conceded.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 22nd September 2014. The Rights Commissioner recommended that the worker be regularised as a Grade 3 with effect from October 2013. The claim for retrospection was unsuccessful.
On the 6th October 2014 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 25th November 2014.
UNION'S ARGUMENTS:
3 1 The worker has carried out the role and responsibilities of a Clerical Officer Grade 3 since 2007. She redeployed and undertook the additional duties yet remained on her substantive Domestic Band 4 payscale. There was no agreement with the worker that she would transfer to another job at a higher level but remain on the lower rate of pay.
2 The Union is seeking that the worker be regularised as a Clerical Officer Grade 3 with effect from June 2007 and that she receive the appropriate rate of pay retrospective to that date as this is money that she has already earned and is owed by her employer.
MANAGEMENT'S ARGUMENTS:
4 1. Management is unable to retrospectively appoint the worker to a Clerical Officer Grade 3. The worker, as part of a collective agreement, is to be regularised as a Clerical Officer Grade 3 with effect from October 2013. Management cannot agree to retrospective regularisation as sought by the Union as it did not form part of the agreement.
2. The worker was aware that she was transferring on her existing rate or pay despite carrying out the role of Clerical Officer Grade 3. Concession of the claim as sought by the Union would lead to repercussive claims which would be unsustainable from a cost perspective.
DECISION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation which found against her claim for payment of an acting up allowance, regrading and compensation for an ongoing loss. The Rights Commissioner noted that the Respondent will regrade the Claimant backdated to 1stOctober 2013 to an appropriate point on the grade 3 scale, and rejected the claim for the backdating of incremental credit to 2007, having regard to the Croke Park and Haddington Road Agreements.
The Claimant was employed in the Catering Department at St. Loman’s Hospital in 2000. In 2007 when the Kitchen closed down she was paid as a Domestic at Band 4 Grade. As a result of the closure she was redeployed to a Clerical role on her existing terms and conditions of employment (with the exception of a reduction in her weekly working hours).
By correspondence dated 7thNovember 2013 and 16thJanuary 2014 the Union submitted the claim to HSE Management. However, the claim as presented before the Court related to an underpayment rather than regularisation. It is clear to the Court that the claim before the Rights Commissioner and the correspondence mentioned above was for regularisation of an acting up position, regrading and compensation. That is the claim which is on appeal and that is the claim on which the Court must adjudicate.
HSE Management stated that the Claimant was encompassed by the terms of HSE HR Circular 017/2013 which outlines the details of regularisation of acting posts and accordingly by Decision No: DHR 123/14 she will be regularised at the 8thpoint of the Clerical Officer Grade III scale with effect from 1stOctober 2013. It rejected the Union’s claim for incremental credit and compensation. HSE Management stated that the claim was a cost-increasing claim and as such was debarred under the terms of the Public Service Stability Agreement 2013-2016 (Haddington Road Agreement).
Having considered the submissions of both parties, the Court accepts that at the time the claim was made it was encompassed by both HSE HR Circular 017/2013 and by the terms of the Haddington Road Agreement and therefore the terms of the Circular should be applied with immediate effect to the Claimant and the claim for incremental credit and compensation cannot be conceded by the Court.
On that basis the Court upholds the Recommendation of the Rights Commissioner. Therefore the appeal fails.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th December 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.