Complainant

Respondent

Anonymised Parties

Theatre Operative

Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019457-001

28/05/2018

The claimant was employed as a Theatre Operative with the respondent in June 2015 but was aggrieved with the respondent’s failure to grant him incremental credit for previous service on appointment. Prior to his appointment the claimant was on a panel   for 5 years arising from which he worked in a number of nurse management centred roles of Health Care Assistant , Multi Task Attendant and Theatre Operative. Throughout this time the claimant was placed at various locations within the respondent’s catchment area , through employment agencies. On appointment , the claimant was placed on the first point of the Health Care Assistant scale.The claimant complained and was assimilated onto point 4 of the Health Care Assistant scale – it was submitted that the claimant should have been assimilated onto point 4 of the Theatre Operative scale. When this matter was pursued , management indicated that the claimant’s reassignment from point 1 – point 4 of the HCA scale was incorrect. Ultimately , the employer amended the scale to move the claimant from point 4 of the HCA scale to point 2 of the Theatre Operative scale.

The claimant contended that he should get full credit on the Theatre Operative scale for all previous service which would place him on point 7 of the Theatre Operative scale from the 1st.May 2018.It was argued that the claimant had sought documentary evidence from the respondent to justify their refusal to grant him credit for his previous service but this had been denied to him .

At the hearing , the union undertook to research any previous Labour Court determinations on similar disputes and responded as follows:

“The adjudicator   adjourned on the day to allow time for the parties to provide copy of any relevant Labour Court decisions that might impact this case.

We have found a number of recommendations , but none that specifically address the specifics of this case, that isn’tto say none exist.

However we would say that on the day of the hearing HSE management seemed to accept that if the claimant had been

a direct employee at the time of him taking up the Theatre Porter role his previous experience would be recognisedfor pay purposes.

The fact that   the claimant came to the post through an agency seems to be the main reason for the refusal to recognise his previous service.

This position is contrary to and in breach of the Protection of Employees (temporary agency work) Act 2012.

This, together with the main points of our written submission (presented on the day) clearly shows that

The claimant was treated unfairly in this matter and we are seeking a favourable decision.

We trust that the recommendation will now issue as soon as possible.

Please note we have copied this email to the employer side.”

The respondent set out a chronology of the claimant’s employment history and confirmed the union’s account of the amendments to the claimant’s incremental assimilation.The claim was denied on the basis that “ documentation of previous work history and verification of service from his previous employer (Recruitment Agency for Health Service Workers)did not support the required respondent’s criteria for incremental credit purposes and point 1 of Band 2 scale should have been applied from the date of hire”.

Th e employer went on to explain the errors made by the hospital in processing the claimant’s assimilation and in recognition of same placed the claimant on point 2 of the higher Theatre Operative Band from the date of hire.Gross arrears were paid to the claimant in April 2018.

The employer rep stated that the general principle on incremental credit is that

“ New appointees to any grade start at the minimum point of the scale .Incremental credit will be applied for recognised relevant service in Ireland and abroad (D.O.H. circular 2/2011).Incremental credit is normally granted on appointment , in respect of previous experience in the Civil Service , local authorities , health service and other public service bodies and statutory agencies.This provision is not affected by a break in service.”

It was submitted that the respondent’s recruitment centre had reviewed the claimant’s service history and “ have determined that his previous service is not reckonable for HSE incremental credit purposes for the Band 2 role into which he was recruited and decision to appoint onto point 1 of Band 2 was confirmed….in recognition of the retrospective errors made to Mr.Magee’s payments in 2015 , the respondent applied red circle approval to appoint the claimant onto point 2 (rather than Point 1 )of Band 2 scale”.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.In the course of the hearing the respondent’s representative clarified that the claimant would have been awarded incremental credit for his service prior to appointment if he had been a direct employee of the respondent. She indicated that the fact the claimant was engaged on an agency basis distinguished him from his colleagues and precluded recognition of his agency service. There is no disputing that the claimant was engaged on equivalent work to his direct hire colleagues in various positions and locations on Nurse Management Centred roles throughout his panel service for the 5 years preceding his permanent appointment with the respondent .While I acknowledge that the claimant would not have locus standi to process a complaint under the Protection of Employees ( Temporary Agency Work) Act 2012 at this point , the respondent’s policy of non recognition of agency service for incremental assimilation purposes offends the principles set out in the Act and consequently I am upholding the complaint.I recommend the respondent revise the claimant’s assimilation with a view to placing him on point 4 of the Theatre Operative scale with effect from the 1st.May 2015.