FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Recommendation No: ADJ-00006981.
BACKGROUND:
2. This case concerns a request by the worker for sessional status.
The matter was referred to an Adjudication Officer for investigation and recommendation. On 21 July 2017 the Adjudication Officer issued the following recommendation:-
The Complainant is bound by the terms of that contract.
In the absence of consent on the part of the respondent to vary it, (and there is no prospect of this) he is bound by its terms, unless he resigns (which he should certainly not be tempted to do in pursuit of his current objective).
Accordingly, for all these reasons, but in particular on account of his contractual position, I cannot recommend in his favour.
The Claimant appealed the Adjudication Officer's recommendation to the Labour Court on 10 August 2017 in accordance with section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 5 September 2017.
DECISION:
The matter before the Court is an appeal by the Claimant of an Adjudication Officer’s Recommendation which found against his claim to have his employment status reclassified from permanent status to “sessional” status. The reason for his claimed change of status relates to the higher hourly rate paid to sessional staff. In the alternative the Complainant sought to be offered the salary applicable to a Chief II Pharmacist post.
The Claimant was initially employed as Pharmacy Technician on a temporary contract since 29thNovember 2004. Since 29thNovember 2008 he has been employed as a Senior Pharmacist in a permanent capacity working in the Addiction Services of the HSE. He said that since 2008 he has consistently sought to be reclassified as a sessional employee.
In July 2012, to address his request HSE informed him that he was free to become a Sessional Pharmacist; however, this would require his resignation from his permanent position and application for a sessional position. At this time it was pointed out to him that as a sessional employee he could be at risk of not being allocated sufficient hours to suit him. HSE explained that at that time issues were being addressed to standardise the pharmacy service and deal with the discrepancy issues between sessional staff and permanent staff.
The HSE explained that there are a number of Senior Pharmacists employed in Addiction Services on a sessional basis. They are remunerated on a sessional rate which is Department of Health approved and is based on a fee per session basis. It is an enhanced rate of pay originally based on the principle that the individual did not have access to annual leave, sick leave and pension entitlements. Sessional staff were regarded as contractors on a contract for service, working a short number of hours per week. HSE management told the Court that there are legacy issues associated with the current cohort of sessional staff and efforts have been made over the years to regularise their employment status and tenure. Furthermore, it stated that it is not its policy to recruit additional sessional pharmacists.
HSE also informed the Court of the Department of Health Directive that specifies that consolidated salary scales are strictly adhered to and in no circumstances should an employee receive remuneration in the nature of pay and allowances of an amount greater than that prescribed for that grade.
Having considered the position of both parties, the Court is satisfied that the Claimant is paid consistent with his grade as a Senior Pharmacist, he is in receipt of all appropriate terms and conditions associated with his grade and his contract of employment. Accordingly, the Court is satisfied that he is properly remunerated according to his grade. In all the circumstances of this case the Court sees no merit in conceding the claim.
The Court upholds the Adjudication Officer’s Recommendation and dismisses the Claimant’s appeal.
Addendum:
The Court notes that HSE Management are willing to examine other matters related to his grading position which were raised at the hearing, Both sides indicated that they were willing to explore these matters further. The Court has no further role in that matter.
Signed on behalf of the Labour Court
Caroline Jenkinson
7 September 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.