FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY CONNECT TRADE UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Recommendation No. ADJ-00013356.
BACKGROUND:
2. The case before the Court concerns the Claimant's appeal of Adjudication Officer's Recommendation No. ADJ-00013356. The dispute refers to the Claimant's claim for retrospective regrading that would allow him to receive a pension commensurate with the position of Grade V Maintenance Officer. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 4th October 2018, the Adjudication Officer issued his Recommendation as follows:
"It is clear the Worker has found himself in a disappointing situation, carrying out additional work without appropriate compensation for his efforts. I note that many public servants found themselves in very similar situations, where the work burden was shared among those who were left within the workplace, and in many cases the burden was not shared equally. The Worker is one of a generation of public servants who have given their all and more in their public service.
However, unfortunately, I am satisfied this his request is beyond what constitutes a well-founded request in the wider circumstances of the facts of the case and I am satisfied that the Worker's case cannot succeed".
The Claimant appealed the Adjudication Officer's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 16th April, 2019.
The following is the Decision of the Court:-
DECISION:
The Complainant is a qualified carpenter and has been employed continuously by either the HSE or one of its predecessors as a Craftworker since 1971. He retired in 2015 but was retained in a temporary capacity for four years after his retirement date.
The Complainant referred a complaint to the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969 on 22 February 2018 seeking retrospective payment for additional responsibilities he had assumed from 2008 following the retirement of the then Maintenance Officer. The Adjudication Officer issued his Recommendation (ADJ-00013356) on 4 October 2018 and decided that the complaint was not well-founded. The Complainant appealed that Recommendation to the Court on 14 November 2018. The Court heard the appeal in Thurles on 16 April 2019.
Submissions
The Complainant submits that he has been acting in a supervisory capacity since 2001 at which time a major building programme took place in respect of which he carried out the duties of a Clerk of Works. In 2008, he again assumed additional responsibilities when the Maintenance Officer to whom he reported retired. In 2009, a moratorium on recruitment and promotion was implemented across the Public Service. The moratorium prevented the Complainant from applying for an acting up role. He applied unsuccessfully for regularisation of his position pursuant to Circular 017/2013.
The Complainant retired from the post of Craftworker in 2015. His lump sum and pension were calculated on the salary associated with his substantive post. He received his lump sum only at that time because he was retained in a temporary capacity for some four years following his retirement. In February 2017, the Complainant’s substantive position was regraded from that of Craftworker to Grave V Maintenance Officer. On the appeal, the Complainant is seeking three years’ retrospection at Maintenance Officer level to enable him to receive a pension calculated in accordance with the higher salary associated with that grade.
The Respondent accepts that the Complainant may have taken on some additional work as a result of the recruitment and promotion moratorium but this was the case at the time for many public servants as vacant posts were not filled. The HSE further submits that the Complainant continued to be paid the Craftworker’s Tool Allowance up until the cessation of his employment in 2019. That allowance is payable to individual Craftworkers who carry out the duties of their individual craft and is not payable to Maintenance Officers or those carrying out the duties of a Maintenance Officer. The HSE also submits that the substantive post held by the Complainant was not upgraded until 2017 (with no retrospection) at which stage the Complainant had already retired and, therefore, in its view, the Complainant’s pension calculations are correct.
Decision
The Complainant did not qualify to have his position regularised in accordance with Circular 017/2013. He was – like many public servants at the time – unfortunate in that regard. However, the Court accepts that the Complainant did take on significant additional work-related and supervisory responsibilities between 2001 and 2008 for which he did not receive any additional monetary reward. The Court is of the view that the Respondent should make a once-off payment of €8, 000.00 to the Complainant in recognition of his additional work contribution in the period 2001 to 2008 and in full and final settlement of the within appeal. For the avoidance of doubt, this payment will not impact on the calculation of the Complainant’s pension entitlements.
The Court so decides.
Signed on behalf of the Labour Court
Alan Haugh
5th June 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.