FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. An appeal by both parties of a Rights Commissioner's Recommendation no r-138730-ir-13/DI.
BACKGROUND:
2. The Claimant is seeking compensation from the HSE for the failure to pay her incremental credit for the period which she was acting-up in the higher position as a Grade VIII Officer.
- The Employer said they were bound by the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 and cannot accede to the claim.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 29th January 2014 the Rights Commissioner issued the following Recommendation:-
- Having fully considered the oral and written submissions made by the parties it is clear, and no suggestion to the contrary was made by the respondent that the Claimant has diligently with commitment performed a Grade VIII role to a high standard since 2004. Furthermore, I find that the Claimant has on a number of occasions been given an expectation that she would be regularised in the Grade VIII role. During the period she acted-up at Grade VIII level, the Respondent has regularised other employee’s including Agency Staff at Grade VIII level and above and awarded them incremental credit. This has resulted in the Claimant legitimately feeling she has been the victim of unequal treatment.
The Labour Court in Appeal Decision No. AD1344 of the 28thMay 2013 made a decision on a case where the circumstances mirror that of the Claimant’s.
Consistent with Appeal Decision No. AD1344, I find that the Claimant has merit and that she should, in equity, be confirmed at Grade VIII level and be moved to the appropriate point on the scale with effect from 21stOctober 2013.
The Claimant’s appropriate point on the Grade VIII scale is to be determined by reference to her having moved onto the Grade VIII scale on her incremental date in 2005.
- Having fully considered the oral and written submissions made by the parties it is clear, and no suggestion to the contrary was made by the respondent that the Claimant has diligently with commitment performed a Grade VIII role to a high standard since 2004. Furthermore, I find that the Claimant has on a number of occasions been given an expectation that she would be regularised in the Grade VIII role. During the period she acted-up at Grade VIII level, the Respondent has regularised other employee’s including Agency Staff at Grade VIII level and above and awarded them incremental credit. This has resulted in the Claimant legitimately feeling she has been the victim of unequal treatment.
WORKER’S ARGUMENTS:
3. 1. The Claimant began her employment as a Grade VI Clerical Administrative Officer in 2000. In 2004 the Area Administrative left and as requested by her Employer she took over these duties. The Area Administrative role was considered a Grade VIII role. In July 2004 the Claimant commenced receipt of an acting allowance for acting up into this post.
2. In 2005, the Claimant was successful at interview and was appointed to Grade VII. She continued to act in the Area Administrative VIII role.
3. In November 2011 following an interview process the Claimant was appointed as General Manager from 1st December 2011. Amazingly two years later the Claimant was informed that she was “to be appointed in a temporary capacity from 1stOctober 2013.
EMPLOYER’S ARGUMENTS:
4. 1. The Area Administration Grade VIII post became vacant in 2004. The Claimant was appointed to act Area Administration (Grade VIII), substantive Grade VII with effect from 1st February 2004.
2. Subsequently in 2011 an expression of interest was advertised in respect of the post of General Manager. The Claimant was successful in this competition and was appointed into the position of General manager on existing terms and conditions of employment i.e. substantive Grade VII, Acting Grade VIII.
3. All claims arising for additional payment, in addition to the normal critical examination of the scope for increasing payroll costs, must be considered in light of the terms of the Financial Emergency Measures in the Public Interest (No. 2) Act 2009, therefore the HSE cannot in the circumstances exceed to the Claimant’s claim/request.
DECISION:
This matter came before the Court by way of an appeal by the HSE and a cross-appeal by the Claimant against the recommendation of a Rights Commissioner. The matter is before the Court under the Industrial Relations Acts 1946 -2012. Consequently the Court must deal with the case by applying normal standards of good industrial relations practice.
The Claimant in this case was acting in a Grade VIII position from 2004. She has since been regularised in her Grade VIII post pursuant to an agreement reached between the HSE and Unions representing its staff. That agreement arose from the Public Service Stability Agreement (2013 -2016) (otherwise known as the Haddington Road Agreement). The terms of that agreement provided that those in long term acting positions would be regularised but on a cost neutral basis. The practical effect of that provision is that incremental credit for the time spent acting in the post cannot be given. The Claimant relies, amongst other things, on the fact that notwithstanding the terms of the Haddington Road Agreement the HSE conceded incremental credit to others.
A similar situation was addressed by this Court in Recommendation LCR20728. In that Recommendation the Court found it necessary to express its disapproval of the attitude adopted by the HSE in regard to the inconsistence in its approach to the application of incremental credit. Nonetheless the Court considered itself bound by the terms of the Haddington Road Agreement and recommended that they be adhered to. The Court feels obliged to adopt a similar position in this case.
Accordingly, while the Court strongly disapproves of the previous instances in which the HSE contravened the agreement upon which it now relies, that is not a basis upon which the Court can decide that the agreement should not be applied in this case.
It is the decision of the Court that the Claimant be permanently regularised in her Grade VIII post with effect from October 2013 on a cost neutral basis in accordance with the terms of the Haddington Road Agreement. On that basis her claim for full incremental credit cannot be conceded.
The Recommendation of the Rights Commissioner is varied accordingly
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
25th June, 2014.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.