LCR22246

1.Appeal of Adjudication Officer Decision No. ADJ-00024137

BACKGROUND:

2.This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 19 March 2020 the Adjudication Officer issued the following Recommendation: -

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 20^thApril 2020 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on the 22^ndJuly 2020.


DECISION:

This case is an appeal by the Employer of the Decision of an Adjudication Officer. The issue in dispute between the parties is retrospection in respect of the payment of an allowance. The Worker completed a course in 2010 which entitled her to a Specialist Qualification Allowance. It was the Union’s submission on behalf of the Worker that she only became aware of her entitlement to the allowance in 2012. The Worker contacted the Director of nursing by email on the 19th September 2012 enquiring about her eligibility for the Allowance it is her submission that this constituted an application. By email dated the 19^thSeptember 2019 the Worker was advised that HR were not processing any further applications because of a directive from the HSE which had been in effect since February and that they did not know when that would be lifted. It is the Union’s submission that the Worker’s email should have been considered to be an application and that when the directive from the HSE was lifted in October 2012 she should have received the allowance. In March 2019 the Worker made an application for the allowance which in line with the requirements for the allowance was approved by the Director of Nursing and paid from that time. The Union are seeking that the allowance be back dated to 2010 and drew the Court’s attention to the fact that an adjustment was made to the payroll system in December 2012 to reflect the fact that she had achieved the qualification and therefore the Employer knew she was entitled to the allowance. The Union did not dispute that the Worker had not pursued or followed up on her entitlement to the allowance from September 2012 till March 2019. The Union also confirmed that they had no other claims similar to this one pending.

It is the Employer’s submission that the Worker only formally claimed the allowance in March 2019 and that it is their policy only to pay up to six months arrears. The Employer accepts that she was eligible for the allowance since 2010. In relation to the email in 2012 it is their submission that was not an application. The Employer also pointed to the fact that the Worker had not pursued the claim, that the reinstatement of the allowances was very topical at the time and that she must have aware that she could revisit the issue. It is the Employer’s submission that they cannot have a situation where Workers do not claim an allowance and then years later submit a claim seeking to be paid arrears. The failure to claim the allowance in a timely manner impacts negatively on their budgeting process. In relation to the changes to the pay role data in December 2012 the Employer stated that arose from a notification in January 2011 that she had completed the course .

It is clear to the Court from the submissions of the parties and the oral submissions made on the day that there was a communication deficit in this case with the worker believing she had made an application and this view being reinforced when her payroll status was changed. The Employer on the other hand understanding that she had the qualification but had not submitted a formal application in the traditional manner. This misunderstanding was further complicated by the fact that the allowance was suspended at a national level for a period in 2012.

The Court having considered the submissions of the parties decided that in the unique circumstances of this case a payment of €15,000 should be made to the Worker in full and final settlement of this claim.

The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
NJ	______________________
20 AUGUST 2020	Deputy Chairman