LCR21754

• This matter was referred to an Adjudication Officer for investigation and Recommendation. On 1 May 2018 the Adjudication Officer issued the following Recommendation:-
  
  • On the basis of the evidence and my findings above, I recommend that the Respondent should apply incremental credit to the Complainant on the same basis as that authorised by the Department in respect of the Complainant’s current employment with a Local Authority. This should be implemented within 42 days of the date of this Recommendation.
  The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 30 May 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

DECISION:

This matter comes before the Court as an appeal of a decision of an Adjudication Officer.

The Claimant believes that he should, on appointment to the staff of the Respondent on 22^ndMarch 2016, have been afforded credit for previous service with another County Council. That previous service had ended on 14^thDecember 2014 when the Claimant took up employment in the private sector.

The Respondent contended that, by operation of Circular EL02/2011 governing incremental credit for previous service, the Claimant had no entitlement to incremental credit on his appointment to the staff of the Respondent.

The Claimant submitted that Circular EL02/2011 had no application to him because he was a serving public servant on 1^stJanuary 2011 albeit he ceased to be a public servant on 14^thDecember 2014. The Respondent submitted that the Claimant’s submission as regards the meaning of the circular was incorrect and that it had full application to him. The Court considers that any recommendation by it which would purport to interpret circular EL02/2011 in this regard would be inappropriate in the absence of full submissions on the potential impact of such a decision of the Court on the application of the circular to staff of County Councils since 2011.

It is clear to the Court that any award of incremental credit to the Claimant, arising from the terms of Circular EL02/2011, could only be made with the approval of relevant Government Departments. That approval was never sought because the Respondent decided that no exceptional circumstances applied to the appointment of the Claimant to the staff of the Respondent in 2016 such that an application grounded on such circumstances could be made by the Respondent to relevant Government Departments. It is not for the Court to ‘second guess’ the assessment of the Respondent in that regard given that it was for the Respondent, in accordance with the terms of Circular EL02/2011, to make application for incremental credit or not based on its assessment of the existence of exceptional circumstances. No application was made and no approval for incremental credit was given.

The Court notes that this matter was the subject of engagement between the Claimant and the Respondent before the Claimant took up employment and that the Respondent made clear to the Claimant at that time that its assessment was that no exceptional circumstances arose justifying a starting rate of pay above the minimum. The Court further notes that the Claimant signed his contract of employment only after this matter was engaged with by both parties and the position of the Respondent fully clarified to him.

In all of the circumstances of this matter the Court is unable to find that the Respondent was incorrect in the execution of its functions under the terms of Circular EL02/2011 and consequently is unable to recommend concession of the claim.

The Decision of the Adjudication Officer is set aside and the appeal succeeds.

The Court so recommends.

Signed on behalf of the Labour Court



Kevin Foley
MK______________________
12 July 2018Chairman



NOTE

Enquiries concerning this Decision should be addressed to Mary Kehoe, Court Secretary.