FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY CONNECT TRADE UNION) DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No ADJ-00015795.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Adjudication Officer's Decision No ADJ-00015795. The dispute relates specifically to the Worker's claim that his Employer unilaterally took the decision to cease payment of an allowance that the Worker had received for a period in excess of eighteen years. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 11th June, 2019, the Adjudication Officer issued his Recommendation as follows:
"I recommend that the Worker should re-engage with the Employer with a view to resolving this dispute on the basis of the options provided for in the Employer's proposal dated 10 August, 2017.
I also recommend that in the event the parties should successfully resolve the dispute on the basis of agreement on any of the options set out in this proposal (or any variation thereof that is mutually acceptable to both parties) that the Employer should make a retrospective payment of the on-call allowance to the Worker from the date of its cessation in June, 2017 until the date of any such agreement".
On the 10th July, 2019 the Worker 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 2nd October, 2019.
UNION'S ARGUMENTS:
3. 1. The Union on behalf of its member asserts that participation in the on-call roster is voluntary and the Worker is entitled to remain off the roster and to provide cover as and when required.
2. The Union is seeking re-instatement of the on-call allowance on the basis that it has been paid for a long number of years, during which the Worker did not participate on the on-call roster.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker opted to remain off the on-call roster and is not entitled to be paid the on-call allowance as a result.
2. The Employer maintains that the Worker is in a position to participate in the on-call roster and receive the allowance accordingly, however, he has chosen not to do so.
DECISION:
The Court is surprised to note that the Worker received an on-call allowance for eighteen years while he refused to go on the on-call roster, contrary to the requirement in the relevant agreement that makes it clear that only those workers on the roster are entitled to this payment.
The Court recommends that the Worker be given one calendar month from the date of this Recommendation to state his willingness to go on the roster. If he does so, the Court recommends further that he should be paid six months’ arrears of the on-call allowance and that the allowance be restored to him for the future.
The Court notes that if the Worker does not go on the roster he is not entitled to the on-call allowance nor to the arrears referred to in this Recommendation.
Signed on behalf of the Labour Court
Tom Geraghty
16th October 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.