FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE, PRIMARY CARE REIMBURSEMENT SERVICE - AND - DEIRDRE O'HALLORAN (REPRESENTED BY COMISKEY SOLICITORS) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer's Recommendation No. ADJ-00020760.
BACKGROUND:
2. This dispute concerns a claim that the job of the Worker - a Senior Pharmacist - is incorrectly graded. This dispute was referred to an Adjudication Officer for investigation and recommendation. On the 1st October, 2019 the Adjudication Officer issued the following Recommendation:-
- "I am recommending that either the [Worker is] moved to the Chief II pharmacist grade or that a new grade be created that more accurately reflects [her] actual responsibilities and obligations. Furthermore I am recommending that [she] be reimbursed the difference in pay from the Senior Pharmacist salary to the Chief II Pharmacist grade or new grade".
On the 6th November, 2019 the Employer 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 21st January 2020.
WORKER'S ARGUMENTS:
3. 1. The Worker's role goes significantly beyond the parameters of other Senior Pharmacists.
2. The Worker's role is more akin to that of a Chief II pharmacist.
3.Notwithstanding the above, the Employer failed to appeal the Adjudication Officer's Recommendation in a statutorily permissible manner.
EMPLOYER'S ARGUMENTS:
4. 1. There is a considerable difference between the roles of Senior Pharmacist and Chief II Pharmacist.
2. The Worker was employed as, and has at all times carried out the role of Senior Pharmacist.
3. Notwithstanding the above, as this claim is cost-increasing, it is prohibited by the Public Service Stability Agreement.
DECISION:
The Court, at the outset of its hearing, clarified that the decision of the Adjudication Officer under appeal had identified only one Claimant as a party. The within appeal therefore concerns only one Respondent who is the Claimant named in the decision of the Adjudication Officer.
The Respondent submitted that the within appeal was out of time. The Respondent submitted that a signed document of appeal was not received by the Court within the period of six weeks specified in the Industrial Relations Act, 1990.
The Act of 1969 provides at Section 13(9) as follows:
- 13(9) (a) A party to a dispute in relation to which a rights commissioner has made a recommendation may appeal to the Court against the recommendation and the parties to the dispute shall be bound by the decision of the Court on the appeal.
- (b) The Court shall hear and decide any appeal to it under this subsection and it shall convey its decision thereon to the parties.
36(2)An appeal to the Court against the recommendation of a rights commissioner shall not be considered unless it is notified in writing to the Court within six weeks after the making of the recommendation.
The Court received a document purporting to appeal the decision of the Adjudication Officer on 6thNovember 2019. That document was not signed by an agent of the Appellant. The Court notes the legislative provisions contained in the Acts of 1969 and 1990 and notes that no additional requirement is placed upon Appellants by the Court’s own rules as regards the form of appeal to be used in matters arising under the 1969 Act at Section 13. In all of the circumstances, the Court finds that the appeal documentation received on 6thNovember 2019 constitutes a valid appeal within the meaning of the Acts.
The claim before the Court concerns a Claimant who contends that the role she caries out as a senior pharmacist goes significantly beyond the more limited parameters of other senior pharmacists and falls squarely within those envisaged of Chief II staff. The Appellant rejects this contention in its entirety.
The parties set out significant detail in their submissions as regards the work carried out by the Respondent and the work carried out by Chief II staff. The Court sought clarity on the claim of the Claimant. Her representative set out that the Claimant seeks to have her position upgraded to the position of Chief II and that she be upgraded to occupy that upgraded role.
The Appellant submitted that, apart from its rejection of the within claim on its merits, the Public Service Stability Agreement (PSSA) has application to the within matter. Specifically, the Appellant submitted that the parties to the agreement, including the Trade Union representing staff at the Claimant’s grade, agreed that no further cost increasing claims would be served upon the employer for the lifetime of the PSSA. The Appellant submitted that the within claim is cost increasing and served within the lifetime of the PSSA which remains in place as the collective agreement covering staff at the Claimant’s grade. The Claimant’s representative acknowledged that the claim, if conceded, would carry an increased cost to the Respondent.
The Court cannot set aside the terms of the collective agreement applying to the parties before the Court. In those circumstances the Court is unable to recommend concession of the within claim during the lifetime of the PSSA.
For completeness, the Court notes that the within dispute is founded on a clear difference between the parties as regards matters of fact. It is not possible for the parties to credibly disagree as to whether, as a matter of fact, the work of the Claimant as a senior pharmacist is‘more accurately aligned with the the work of a Chief II pharmacist role due to their responsibilities and duties when compared to other senior pharmacist roles in the PCRS’. It is a reality that the Claimant either does or does not carry out a role which in practice goes significantly beyond the ‘more limited parameters of other senior pharmacists’ and falls squarely within those envisaged of Chief II staff.
The Court therefore recommends that the parties should engage locally, with support from a facilitator if necessary, to establish a shared understanding of the factual matrix underpinning the within dispute.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
COR______________________
29 January 2020Chairman
NOTE
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.