FULL RECOMMENDATION
PARTIES : CHILDREN'S HEALTH IRELAND DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No:ADJ-00026904 CA-00034350-001 A Labour Court hearing took place on 25 November 2020.
This is an appeal on behalf of the Worker from a Recommendation of an Adjudication Officer (ADJ-00026904, dated 16 September 2020) under section 13 of the Industrial Relations Act 1969. The Notice of Appeal was received by the Court on 20 October 2020. The Court heard the appeal in a virtual courtroom on 25 November 2020. Background to the Dispute The Worker has been employed as a Basic Grade Biochemist at Children’s Health Ireland at Crumlin (formerly Our Lady’s Hospital for Sick Children, Crumlin) (‘the Employer’) since 1979. As a consequence of suffering serious long-term ill-health the Worker has been off pay since August 2015. She is seeking to retire shortly. The issue in dispute concerns the application of an independent report into the grading of biochemists in hospitals conducted by Doran/McHugh in May 2004 entitled “Report on an examination of claims for re-grading of Clinical Biochemists” (‘the Doran/McHugh Report’; ‘the Report’) to the Worker. The established Biochemistry structure within hospitals is Basic Grade Biochemist, Senior Grade Biochemist, Principal Biochemist and Consultant Biochemist (or Top Post). This structure was established and developed in the 1960s and 1970s. The Worker submits that she should be re?graded to Senior Biochemist level pursuant to the findings of the Report. The Doran/McHugh Report was carried out pursuant to terms of reference agreed between the former IMPACT Trade Union and the former Health Services Employers Agency. The report examined claims in respect of 22 Biochemist posts around the country, at varying levels. In respect of the Employer, it examined one claim for conversion from Senior to Principal level and one claim for conversion from Basic to Senior level (the post held the Worker). The report explicitly recommended that the existing Senior Grade Biochemist be upgraded from Senior level to Principal level. In respect of the Worker’s post the report stated as follows “the post-holder has been employed as a basic grade for over 23 years. During this time many developments in relation to structures and grading levels have taken place within the hospital. These have not resulted in any improvement in the grading levels for biochemists”. The Report was otherwise silent in relation to the post occupied by the Worker. Therefore, the Worker continued to be employed as a Basic Grade Biochemist. In 2006 the Consultant Biochemist passed away and in 2009 the then Principal Biochemist retired. Neither post was subsequently filled by the recruitment of further biochemists as the Employer had made a decision in 2008 that its clinical needs would be better made by recruiting individuals from the profession of medical scientist. The Department in which the Worker was employed was also restructured. At present, that Department is staffed as follows:
The Union submits that following the retirement of the Principal Biochemist retired in 2009, the Worker effectively worked single-handedly, and therefore, met the criteria for regrading to the role of Senior Biochemist as per circular 102/12 as referenced in clause 3.3 of the Doran/McHugh report:
On the basis of the foregoing, the Union is seeking a Decision from the Court recommending that the Worker “should have been upgraded in 2009 or as a minimum, that she be retrospectively upgraded in order that the maximum pension benefit gained by such an upgrading would be applied in her case.” When asked to clarify the latter element of the claim, the Union representative indicated that they were seeking retrospection for a minimum of three years notwithstanding that the within dispute was referred to the Workplace Relations Commission on 4 February 2020. The Employer submits that much has changed since the publication of the Doran/McHugh Report in 2004, both in terms of the criteria which must be satisfied by an applicant for appointment as a Senior Biochemist within the HSE and in terms of its restructured Laboratory Department which is predominately staffed by members of the Medical Scientist profession. In this context, the Employer rejects the Worker’s claim that she has been working single-handedly since 2009. Decision Neither party was in a position to furnish the Court with a copy of Circular 102/12. The Court cannot therefore comment on the specifics of that circular or on the interpretation of it contended for by the Worker. The Court finds that the Employer’s decision in 2008 to move from a Department staffed by members of the Biochemist profession to one predominately staffed by members of an alternative profession rendered the ongoing application of the Doran/McHugh report moot. The Court, therefore,finds no basis to recommend concession of the within claim. It follows, therefore, that the Recommendation of the Adjudication Officer is upheld. The Court so decides.
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