LCR21804

The Worker was employed by the Respondent Association from April 2003 until her resignation which took effect in September 2018. With effect from 8 January 2007, the Parties entered into a contract that provided for the Worker’s employment as a permanent part-time Occupational Therapy Assistant. However, under the terms of that contract the Worker was remunerated in accordance with the HSE Social Care Worker pay scale.

Although incremental increases had not been paid to the Association’s staff since 2007, nevertheless, during Autumn 2014 the Association found itself in financial difficulties. This occasioned the appointment of an interim senior management team that conducted a root and branch review of overheads and expenditure. The Association initially identified five members of staff who were incorrectly graded and who, therefore, in its view, had been overpaid. With the assistance of the Workplace Relations Commission, the Union and the Association reached an agreement in late 2016 whereby the affected staff members were placed on the top point of the appropriate scale and compensated for any financial loss this caused them.

The Association subsequently determined that the Worker (and a number of her colleagues) were also being incorrectly remunerated. It proposed to apply the terms of the WRC proposal to resolve the Worker’s situation. This was not acceptable to the Worker who then referred a dispute to the Adjudication Service of the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act 1969, as follows:

“My employer has informed me that they are unilaterally changing my contract of employment in a negative manner without my prior agreement. My terms and conditions of employment are well established over a long number of years and I have explicit evidence of this which my employer is aware of. My employer has also refused to allow me progress up my incremental pay scale in line with my colleagues at St Catherine’s that are due same (sic). I seek that my terms and conditions are confirmed as is and that I will be allowed to progress on my incremental scale as per my colleagues at St. Catherine’s Association.”

The matter came before an Adjudication Officer on 26 June 2018. He issued his Recommendation (ADJ-000013275) on 31 July 2018 The Adjudication Officer recommended that the agreement that had emerged from the WRC process and had been applied to a number of the Worker’s colleagues should equally be applied to her with the effect that she would have been placed on the top point of the Occupational Therapy Assistant scale and received 1.5 times her annual loss as compensation. The Adjudication Officer also recommended that a job evaluation exercise be undertaken to determine “if there is another grade that would be more appropriate to the duties performed by the complainant”. Although the Recommendation was accepted by the Association it was rejected by the Worker and appealed by her to the Court on 6 September 2018, some one week before she tendered her resignation.

Recommendation

Having considered the Parties’ extensive written and oral submissions, it appears to the Court that it is being asked to make a Recommendation on the appeal in relation to two distinct matters:

• 
  (i) The repayment of wages foregone by the Worker arising from the Association’s decision to discontinue the payment of annual incremental increases from 2007 onwards;

  (ii) Compensation for the Worker arising from the Association’s alleged failure to treat her – from April 2017 onwards - in similar fashion to her colleagues who had accepted the outcome of the WRC process i.e. by recommencing her incremental progression on her contractual scale from that date.

With regard to issue (i), the Court is aware that the issue of potential compensation to those workers in the so-called ‘section 39 sector’ affected by their employers’ decision to freeze increments from 2007 is currently the subject of negotiations at a national level. That being the case, it would not be appropriate for the Court to pre-empt the outcome of those negotiations in the context of the within appeal.

The Court is of the view that element (ii) of the Worker’s claim has effectively been rendered moot by her freely chosen decision to resign her employment in circumstances where she had clearly rejected the Adjudication Officer’s Recommendation and without affording her former employer the opportunity to carry out the job evaluation exercise proposed as part of that Recommendation.

The Appeal, therefore, fails for the above reasons.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
JD______________________
17 October 2018Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.