LCR21820

FULL RECOMMENDATION CD/18/106 DECISIONNO.LCR21820 ADJ-00009509 CA-00012455-001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LETTERKENNY UNIVERSITY HOSPITAL, SAOLTA UNIVERSITY HEALTH CARE GROUP, HEALTH SERVICE EXECUTIVE - AND - A WORKER REPRESENTED BY BERNIE WALSH DIVISION : Chairman: Mr Haugh Employer Member: Mr Marie Worker Member: Ms Treacy

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no ADJ-00009509.


BACKGROUND:

2. This case concerns a claim by the Worker for compensation for the role he has taken up for the eight years and for the failure to regularise his post to Grade VII.



The Worker said he was acting up for a period of eight years without being regularised to the appropriate grade.

• 
  The Employer said that an acting allowance is no longer in existence in the HSE and that a job evaluation exercise had recommended that the Worker's position be upgraded to Grade VII.

• This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 5 May 2018 the Adjudication Officer issued the following Recommendation:-
  • “I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. Having perused the file, I note that the respondent did not object to the investigation of the complaint by the WRC and in light of the unique nature of the specifics of this complaint I am satisfied that I have jurisdiction to examine the complaint.
    
    I am satisfied on the basis of the response from MR. P R to the claimant’s grievance dated the 17th January 2017 and on the basis of the acknowledgement by the respondent at the hearing that the work of the former Grade VII’s was divvied up and that some of the duties fell on the claimant’s shoulders that the claimant has a compelling case for upgrading .I further acknowledge the difficulties posed for the respondent during the regularisation process because they did not have a Grade VII post into which the claimant could act. I note that the claimant’s grievance has been understandably compounded by the administrative error with respect to the application of the regularisation circular to classifying the claimant as a Grade VI in circumstances where this had already been communicated to him as far back as 2009. I cannot ignore however the provisions of the collective agreement which provide for a job evaluation to determine the appropriate grading of the post.

• • Having regard to all of the foregoing considerations and in light of the unique circumstances pertaining, I am recommending in full and final settlement of this dispute that the claimant be paid an acting allowance with effect from the 23rd October 2015(the date of his formal request for Upgrading to the GM), that an evaluation of his post be fast tracked with a view to having the exercise completed within 8 weeks from the date of this recommendation and that if it emerges through that process that a Grade VII is warranted that the claimant be given full recognition for incremental assimilation purposes of his service with effect from the 23rd October 2015”.

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 11 May 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on the 4 October 2018.




DECISION:

Background to the Appeal

This is a partial appeal by the HSE against a Recommendation of an Adjudication Officer (bearing reference number ADJ-00009509 and dated 5 April 2018) under section 13 of the Industrial Relations Act 1969. The Appeal was originally scheduled for hearing on 28 June 2018 but was adjourned at the Worker’s request and with the HSE’s consent. The rescheduled hearing of the appeal took place on 4 October 2018 in Donegal.

The Worker is currently employed as a Grade VI within the IT Department in Letterkenny University Hospital. He submits that he should be regularised as a Grade VII. The Adjudication Officer recommended as follows:

• • “the claimant be paid an acting allowance with effect from the 23^rdOct 2015 (the date of his formal request for Upgrading to the GM), that an evaluation of his post be fast tracked with a view to having the exercise completed within 8 weeks from the date of this recommendation and that if it emerges through that process that a Grade VII is warranted that the claimant be given full recognition for incremental assimilation purposes of his service with effect from the 23^rdOctober 2015.”

As of the date of the hearing of the within appeal (4 October 2018) the job evaluation process had been completed and the result was awaited. The HSE appeals against the Adjudication Officer’s recommendation that the Worker be paid an ‘acting allowance’ and receive retrospective payment in the event of the evaluation recommending he be regularised as a Grade VII. The HSE submits that there is no longer any provision for payment of acting allowances in the HSE; there are only temporary assignments into higher grade post as per Circular 17/2013. It further submits that the Job Evaluation process is prospective in nature and does not have retrospective effect. Therefore, the question of back pay to the date of his application does not and cannot arise.

Recommendation

Having carefully considered the Parties’ submissions and the relevant extracts from the HSE Job Evaluation Scheme as posted on the HSE website, the Court finds the Worker’s claims for an acting allowance and for retrospective ‘recognition for incremental assimilation purposes of his service from 23^rdOctober 2015’ are not well-founded for the reasons advanced by the HSE. The appeal, therefore, succeeds and the Recommendation of the Adjudication Officer is varied accordingly.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
12 November, 2018Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.