LCR21963

FULL RECOMMENDATION

CD/19/3

DECISIONNO.LCR21963

R-051806-ir-07

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

CLARE CO COUNCIL

- AND -

A WORKER
(REPRESENTED BY FORSA)

DIVISION :

Chairman: Mr Geraghty
Employer Member: Mr Marie
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of Adjudication Officer Recommendation No. R-051806-IR-07.

BACKGROUND:

2. The Worker claims that between 2002 and 2007 she carried out the duties of a higher grade while working in a Council Waste Management Facility. She lodged a claim in 2007. The claim was heard by the same Adjudication Officer of the Workplace Relations Commission in 2007,2014,2015 and 2018. The claim was disputed at all times by the Council. After the final hearing, the Adjudicator recommended the payment of €7,000 as a goodwill gesture, on a ‘red-circled’, without precedence, basis to resolve the issue. The Worker appealed the quantum recommended.

Union arguments

1. The amount recommended does not reflect the value of the additional responsibilities of the Worker in the period concerned.
2. The Worker was a Grade 3 Clerical Officer and was expected to carry out the functions of higher grades at the time.
3. When the Worker raised a claim in 2007, some functions proper to a higher grade were re-assigned from her. This recognises that her claim is valid. This view is strengthened by the fact that when she was on leave, the Worker was replaced by people in higher grades.
4. This is a minor claim under the terms of the various Public Service agreements.
5. An audit report had substantiated the claim in large part. The Adjudicator found that the audit was flawed in not making a good comparison between the Worker’s work and that of other Grade 3 officers but it did list additional duties done by her in that period and formed the basis of the recommendation made.

Council arguments

1. The Council did not appeal the Adjudicator’s recommendation as it facilitated closure of this matter but it does not accept any wrongdoing on its part.
2. In 2007, the Worker utilised the Council’s Dignity at Work policy to raise this matter and it was concluded that the claim was not substantiated. This conclusion was up-held on appeal.
3. Unexpectedly, the matter was raised again in 2013. Case law was quoted in support of the contention that re-submitting the claim after such a period was unfair to the Council and highly prejudicial and dismissal of the claim was sought.
4. Without prejudice to this point, the Council disputes entirely the substance of the claim believing it to have no basis in fact and believing it to be based entirely on the subjective judgement of the Worker.
5. The substance of the claim appears to be more related to workload rather than responsibilities. A review by a Senior Executive Officer in 2014 concluded that the post was graded correctly at the time.
6. As the claim is cost increasing, it is precluded under the terms of the various Public Service agreements.
7. In Local Government, appointments to higher grades can occur only through competition.

DECISION:

It is scarcely credible that a claim dating back to a start date in 2002 and an end date in 2007 would be presented to the Court in 2019.

The Court does not have the capacity, nor is it the function of the Court, to conduct a grading evaluation at any time. To suggest, therefore, that the Court should look back over such a lengthy period and reach an explicable, fact based conclusion is stretching credulity.

The Adjudication Officer, clearly, had the same difficulty and sought to be helpful in suggesting a goodwill gesture to assist in the resolution of the matter.

The fact that the Worker chose to appeal this goodwill gesture raised legitimate questions put to the Court by the Council as to whether the matter should be just rejected out of hand, given the passage of time and the inherent unfairness in expecting an employer to answer in respect of matters that, in terms of Industrial Relations, amount to ancient history.

Furthermore, if a goodwill gesture does not generate goodwill, it is legitimate of the employer to suggest that it is pointless.

The Court weighed these factors in its deliberations and gave serious consideration to overturning the recommendation of the Adjudication Officer in its entirety and making no award.

However, it is the function of the Court under the Industrial Relations Act to assist parties in the resolution of disputes. The Court notes that, however reluctantly and notwithstanding their view that the passage of time was prejudicial, the Council was prepared to accept the recommendation of the Adjudication Officer in order to bring closure to this matter.

The Court believes this to be a reasonable and generous position and, in the circumstances, is willing to up-hold the recommendation of the Adjudicator in order that this should be a full and final settlement of the matter.

Signed on behalf of the Labour Court

Tom Geraghty
LS______________________
12 April 2019Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.

LCR21963

2. The Worker was a Grade 3 Clerical Officer and was expected to carry out the functions of higher grades at the time.

3. When the Worker raised a claim in 2007, some functions proper to a higher grade were re-assigned from her. This recognises that her claim is valid. This view is strengthened by the fact that when she was on leave, the Worker was replaced by people in higher grades.

4. This is a minor claim under the terms of the various Public Service agreements.

2. In 2007, the Worker utilised the Council’s Dignity at Work policy to raise this matter and it was concluded that the claim was not substantiated. This conclusion was up-held on appeal.

3. Unexpectedly, the matter was raised again in 2013. Case law was quoted in support of the contention that re-submitting the claim after such a period was unfair to the Council and highly prejudicial and dismissal of the claim was sought.

4. Without prejudice to this point, the Council disputes entirely the substance of the claim believing it to have no basis in fact and believing it to be based entirely on the subjective judgement of the Worker.

5. The substance of the claim appears to be more related to workload rather than responsibilities. A review by a Senior Executive Officer in 2014 concluded that the post was graded correctly at the time.

6. As the claim is cost increasing, it is precluded under the terms of the various Public Service agreements.

7. In Local Government, appointments to higher grades can occur only through competition.

The Court does not have the capacity, nor is it the function of the Court, to conduct a grading evaluation at any time. To suggest, therefore, that the Court should look back over such a lengthy period and reach an explicable, fact based conclusion is stretching credulity.

The Adjudication Officer, clearly, had the same difficulty and sought to be helpful in suggesting a goodwill gesture to assist in the resolution of the matter.

Furthermore, if a goodwill gesture does not generate goodwill, it is legitimate of the employer to suggest that it is pointless.

The Court weighed these factors in its deliberations and gave serious consideration to overturning the recommendation of the Adjudication Officer in its entirety and making no award.

The Court believes this to be a reasonable and generous position and, in the circumstances, is willing to up-hold the recommendation of the Adjudicator in order that this should be a full and final settlement of the matter.