FULL RECOMMENDATION
SECTION 13(9); INDUSTRIAL RELATIONS ACT; 1969 PARTIES : SOUTH INFIRMARY-VICTORIA UNIVERSITY HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms O'Donnell |
1. An appeal of an Adjudication Officer's Decision no: ADJ-00002076.
BACKGROUND:
2. This case concerns a claim by the Claimant that the Respondent failed to apply incremental credit to her for previous service when she recommenced employment with the Respondent in 2009.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 9 December 2017 the Adjudication Officer issued the following Recommendation:-
- I find that having examined all the evidence there was an onus on the claimant to produce evidence of previous service within a 12 month period commencing employment. I find that based on the evidence as submitted that this is the practice that is applied by the respondent on all occasions that this matter has been raised.
I cannot recommend concession of the claimant’s complaint.
- I find that having examined all the evidence there was an onus on the claimant to produce evidence of previous service within a 12 month period commencing employment. I find that based on the evidence as submitted that this is the practice that is applied by the respondent on all occasions that this matter has been raised.
The Claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 19 January 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 13 June 2017.
UNION ARGUMENTS:
3. 1. Agreement was reached between the HSEA and the nursing unions in 1999. This allowed temporary nurses to be awarded incremental credit for previous genuine nursing experience.
2. This Agreement does not put restrictions or timelines as to when or within what time-frame this validation of service should occur. Nor does it reference retrospection.
3 The error would have become apparent to the Claimant at an earlier date if she had been furnished with an appropriate contract of employment, however she was furnished with a series of temporary employment forms and it was not until she was furnished with a contract detailing her salary in 2012 that the error became apparent.
EMPLOYER’S ARGUMENTS:
4. 1. It is well practiced that specific details must be submitted to the organisation in order to claim incremental credits. This is explicitly outlined to all staff at the induction training provided by the Respondent which the Claimant attended.
2. The Claimant received pay slips on every period and consequently she had the means to check that the correct rate of pay was being afforded to her.
3. Each year returns are submitted based on current years payroll and there is no opportunity for the Respondent to achieve retrospective funding from the HSE for employees who are not on the correct point of the scale in subsequent years.
DECISION:
The Court has given very careful consideration to the written and oral submissions of the parties.
The Court notes that references have been made to National Agreements in the course of its hearing on this matter. The Court cannot, in the course of consideration of an appeal made under Section 13(9) of the Industrial Relations Act, 1969, make comment on or otherwise purport to interpret a nationally applicable agreement. No part of this recommendation should be considered as such.
The Court has however given careful consideration to the particular history of the matter raised in respect of the Claimant. That matter crystallised in 2012 when the detail of incremental placing and salary point was communicated to the Claimant for the first time by the Respondent.
In all of the circumstances of this particular case and noting in particular the procedural history of the matter the Court concludes that there is a requirement, in equity, to address the claim raised. The Court therefore recommends that the Employer should, without prejudice, make a payment to the Claimant of €13,500 in full and final settlement of the matter.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
26 June, 2017Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.