FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY DENIS ROHAN) DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Recommendation No.:- ADJ-00007477
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On 23 November 2018 the Adjudication Officer issued the following Recommendation:-
- “I find this complaint to be well founded and to compensate the Complainant for the loss of incremental credit that she has incurred since July 2013, I recommend that she be compensated by the Respondent the sum of Euro 36,000.00.”.
The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 30 November 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 5 February 2019.
DECISION:
The Court has given careful consideration to the written and oral submissions of the parties.
The matter before the Court is a claim for incremental progression during a period of ‘acting up’ by the Claimant. The Claimant ‘acted up’ as a Grade VIII from 2005 until her appointment to a permanent position at Grade VIII in July 2013. The Claimant’s representative indicated at the hearing of the Court that, notwithstanding that the claim was for incremental progression throughout the years from 2005 until 2013, the resolution recommended by the Adjudication Officer of incremental credit upon regularisation would be acceptable.
It is common case that the terms and conditions for periods of ‘acting up’ in the HSE at the material time did not involve incremental progression on the scale of the grade to which a person was ‘acting up’. It is also common case that a number of persons, including the Claimant’s line manager and two colleagues, were afforded incremental progression while ‘acting up’. The HSE has submitted that approximately 150 to 200 other persons ‘acted up’ in the HSE North East alone without incremental progression during the period at issue in the within claim.
The terms and conditions for periods of ‘acting up’ are contained in a circular / booklet dated May 2009. In essence, the Court is asked to dis-apply those terms and conditions in respect of the Claimant during her period of acting up. The Court is conscious that the within matter comes to the Court as an individual matter but also accepts that any interpretation of an existing circular / booklet or disapplication of a term or condition of employment for identified reasons could have a potentially widespread effect.
The Claimant has submitted that because she had a national role and because her line manager and two colleagues were afforded incremental progression, she should also be afforded that progression.
The Court considers that the failure of the HSE to uniformly and consistently apply the terms and conditions of service during periods of ‘acting up’ has exacerbated the within dispute. However, the Court does not consider it appropriate to move from the inconsistent application of terms and conditions in respect of a minority of staff to the automatic alteration of the application of those terms and conditions to other staff.
In all the circumstances the Court finds that the Claimant has not made out her claim that the terms and conditions for periods of ‘acting up’ as operated in the HSE at the time of her ‘acting up’ should be disapplied to her. The Court regards it to be significant that, notwithstanding anomalies identified before the Court, those terms and conditions had general application in the HSE throughout the period.
During the course of the hearing the following sequence of events became clear. The Adjudication Officer issued her decision on 23rdNovember 2018. On 27thNovember 2018 a Director of the HSE at issued an e-mail supporting the claim. On 28thNovember 2018 the HSE appealed the decision of the Adjudication Officer on a form received by the Court on 30thNovember 2018.
The Court regards it as unhelpful in the extreme that a Director of the HSE considered it appropriate, immediately following issuance of the decision of the Adjudication Officer and immediately preceding the making of an appeal against that decision by the HSE, to enter a written letter of support for the within claim on the basis of his or her assertion that all employees should be treated in an open and fair manner.
The Court believes that the claimant could only have been inappropriately confused by the appearance of such contradictory positions from her employer. The Court finds that, at the very least, the intervention of the Director can only add to any difficulty the claimant might have in accepting the final resolution of the within matter. It is impossible to discern what positive effect the Director concerned could have envisaged as flowing from his or her intervention but it is self evident that no contribution to an appearance of managerial cohesion could have resulted and it did not.
For these reasons the Court recommends that the HSE make a payment of €5,000 to the Claimant in compensation for the misleading and confusing intervention of its Director. As regards the substance of the matter the Court finds that the claim cannot succeed. The decision of the Adjudication Officer in that respect is set aside.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
CC______________________
27 February 2019Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.