FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LONGFORD COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Connolly Worker Member: Ms Tanham |
1. An appeal of a Rights Commissioner's Decision no: r-145477-Ir-14/SR.
BACKGROUND:
2. This case concerns a claim by the Union for the Claimant to be placed on the appropriate rate of pay for the position of Clerical/Administrative Grade VII.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 23 March 2015 the Adjudication Officer issued the following Recommendation:-
- I have carefully considered the evidence and the submissions made and I have concluded as follows.
I note that the Claimant was not appointed to his position on an ‘acting-up’ basis and accordingly labour Court Recommendations in relation to regularisation of ‘acting-up’ positions is of no relevance to the instant claim.
I note that the letter of 7thJune 2011, from LGMSB, quoted by, and relied upon by IMPACT clearly is in respect of the entitlements of fixed-term/specific purpose employees to a contract of indefinite duration; the Claimant does not fall within that cohort of workers and accordingly is not entitled to rely upon this correspondence to support his claim.
Based on the above and on the prohibition of claims of a cost-increasing nature contained within the Public Service Agreement I cannot see merit in the claim and it is rejected by me at this time.
- I have carefully considered the evidence and the submissions made and I have concluded as follows.
The Union on behalf of the Claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 27 April 2015 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A number of hearings were postponed at the request of both parties. A Labour Court hearing took place on the 26th January 2017.
WORKERS’S ARGUMENTS:
3. 1. In 2011, a case pursued under the Fixed Term Workers Act resulted in a Rapid Co-Ordinator being appointed to a position in a permanent capacity and on an incremental scale.
2. In 2011 the Local Government Management Services Board (LGMSB) wrote to the Union confirming that they would apply the terms of the outcome of that case to all Rapid Co-Ordinators.
3. It is the Union’s contention that the case and the agreement of the LGMSB to extend the findings to all fixed term workers / specific purpose contracts confirms the rate of pay for the post.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant is being correctly remunerated for the position that he is filling on a temporary basis.
2. The Claimant is seeking to convert his current temporary assignment arrangement at Grade VII into a permanent contract of employment at that grade. However, the reality is that he already has a permanent employment contract at grade VI level.
3. Concession of this claim would have wide reaching implications for the sector as a whole.
DECISION:
The Court has given careful consideration to the substantive submissions of both parties to this dispute.
The Court finds that the Claimant was originally employed by the Respondent as a Housing Facilitator. 'In 2002, following an open public competition, the claimant was appointed to the post of Community Enterprise Development Officer, with responsibility for the Rapid Programme which was operated as a State funded scheme. That position was remunerated on a single point scale. The Claimant was placed on that point.
In 2005 the post of CEDO was assessed and became a Grade VII post. Those regraded vacancies were advertised and filled through a confined competition. The Claimant however did not pursue that option. Instead he remained in the post of Rapid Co-Ordinator.
In 2011, following a successful complaint under the Fixed Term Work Act the Council decided to regrade all Rapid Co-Ordinators placing them on the Grade VII scale with incremental progression. It did not so regrade the Claimant. It justifies this decision on the grounds that he was not a fixed term worker within the meaning of the Fixed Term Work Act 2003 and was filling the Rapid Co-Ordinator on an acting basis. Accordingly it argues he was not entitled to the Grade VII scale. The Claimant disputes this and seeks appointment to the Grade VII scale in line with the other staff appointed to that position.
The Court finds that the Claimant was not filling the Rapid Co-Ordinator position in an acting capacity. He applied for the post and its associated salary in 2002 through open public competition and has continued in this role despite the cessation of funding in 2013.
In 2011 the Council realigned the Rapid Co-Ordinator post to the Grade VII scale. As the Court finds that the Claimant was not employed in an acting position it further finds that the Council’s reason for excluding the Claimant from this realignment is misconceived and cannot stand. He remains the only person carrying out this role who has not been realigned.
Accordingly the Court recommends that, from the date on which he lodged this claim in 2013, the Claimant be permitted incremental progression in the normal way.
This recommendation is made in the context of the unique factual matrix of this case and does not constitute a precedent regarding either the manner in which posts are filled in local authorities or the manner in which staff in acting positions are remunerated.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
14th March, 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.