LCR21401

FULL RECOMMENDATION

CD/16/353

DECISIONNO.LCR21401

ADJ-00001969 CA-00000359-001

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

NATIONAL UNIVERSITY OF IRELAND, GALWAY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms O'Donnell

SUBJECT:
1. Appeal of Adjudication Officer Decision No. ADJ-00001969.

BACKGROUND:

2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 12^thOctober 2016 the Adjudication Officer issued the following Recommendation:-

In my opinion it is incorrect to assert that the salary scale and the applicable guidelines are separate and distinguishable. The pre January 2011 scale and the old guidelines are inextricably linked as a matter of fact and it would appear that the Labour Court in AD1529 concurs.

Therefore I recommend that the claimant should receive incremental credit in accordance with the guidelines on incremental placings operated by the respondent prior to January 2011 with appropriate retrospection.

The employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 22 November 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on the 14 February 2017.

UNION’S ARGUMENTS:

3. 1. New Guidelines on Incremental Placings were not circulated to the employee or the Union until April 2015. The changes to the guidelines were not negotiated collectively.

2. The employee should receive incremental credit in accordance with the Guidelines on Incremental Placings operated by the University prior to January 2011 with appropriate retrospection.

EMPLOYER’S ARGUMENTS:

4. 1. The Guidelines on Incremental Placings were revised and effective before the appointment of the Claimant.

2. The University has continued to apply these guidelines since they became effective.

DECISION:

The Court has considered in detail the written and oral submissions of the parties.

This Court had, in 2015, considered matters related to this Claimant and made a Recommendation(AD1529)including as regards incremental placing as follows:

The net issue between the parties in this case is whether the role of University Fellow in analogous to that of University Lecturer.
This issue arises in the context of a circular letter from the Department of Finance dated 21^stDecember 2010 which dealt with the application of a Government Decision of 2^ndDecember providing for a salary reduction of 10% for new entrants to the Public Service. In relevant part that letter provides that the reduction should not be applied to those recruited to the same or an analogous grade / role as that which he or she held previously in the Public Service.
The Claimant in this case was previously employed as a University Fellow by NUIG. She was subsequently appointed as a Lecturer below the bar and placed on the post January 2011 scale (with a 10% reduction)
Having considered the content of the role performed by the Claimant while employed as a Fellow and that of her current role, it is clear that the essential characteristics of both roles are broadly the same. Consequently the Court is satisfied that the both roles are analogous.
It follows the Claimant should properly have been placed on the pre January 2011 scale with effect from the date of her appointment. It follows that any necessary consequential adjustment to the Claimant’s incremental placing should be made so as to reflect the position that she would have been in had she been placed on the pre January 2011 scale on her appointment to her current position.
The Unions appeal is allowed and the Rights Commissioner recommendation is amended in terms of this decision.

That Recommendation of the Court had the effect of retrospectively placing the Claimant on the pre-2011 incremental scale at the point she would have been placed had she been so placed on the date of her appointment to her position in 2013.

The Claimant accepted at the hearing that a person appointed to her current position on the same date as her and with the same qualifications and other relevant characteristics would have been placed on point seven of the scale. The Appellant however contends that when she signed her contract of employment in 2013 she was unaware of the fact that a revision had taken place in 2012 to the regulations determining the arrangements for incremental placement. As a consequence therefore she contends that she should have been placed on point eleven of the scale, i.e. in accordance with the regulations prior to their amendment in 2012.

The Court notes that the parties have made directly contradictory submissions and assertions at the hearing in relation to the date upon which the 2012 regulations for incremental credit placement were published on the Respondent’s internal ICT based system. Similarly the parties have made directly contradictory assertions as regards the state of the Claimant’s knowledge of the 2012 regulations at the date of signing by her of her contract in 2013.

In all of the circumstances, the Court can find no basis in the submissions made to it to find that the regulations officially in place to determine incremental placement in 2013 should be set aside in the case of the Claimant. The central facts of the matter are in direct dispute and consequently the Court can but find that the Respondent was entitled to apply the then applicable regulations – the 2012 regulations - to the Appellant when determining her appropriate incremental placing at the date of her appointment to her current position in 2013.

Signed on behalf of the Labour Court

Kevin Foley
LS______________________
23 February 2017Chairman

NOTE

Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.