ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: ADJ-000034036

Parties:

	Worker	Employer
Anonymised Parties	Pharmacist	A Hospital

Representatives

Forsa Trade Union

IBEC

Dispute(s):

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969		01/07/2021

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Date of Hearing: 25/04/2022

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The worker contends that the employer failed to place him on the correct incremental point in 2018 which has led to an accrued, estimated loss of €80,000 for him.

The worker took up employment in a large general hospital in the Dublin Midland Group on 16 July 2018

He earns €2521, gross per fortnight. He works 37 hours a week.

He submitted his dispute to the WRC on 1 July 2021.

Summary of Workers Case:

The worker advised that there are there are two components to this complaint.

One is the appointment of the worker on the first point of the pharmacist’s scale in July 2018. Until 1 May 2021, the employer failed to award him any incremental credit in respect of his previous 14 years as a community pharmacist. This was rectified in May 2021 when he was placed on point 12 of the incremental scale for pharmacists.

The second part is that while his employer in 2021 did recognise the merit of awarding incremental credit in respect of previous service as a community pharmacist and did adjust his incremental point upwards from point 3 to point 12 on 1 May 2021, the employer has failed to award him any retrospection for the years 2018 – 2021 where in his mind, he was nine increments below what he should have been at.

The scale as of 1 October 2021 goes from €35,259 (point 1), to €67,727 (point 13).

The retrospection owed to him amounts to approximately €80,000.

It is this retrospective element upon which he seeks a recommendation.

He did query the non - recognition of his previous service and the employer told him that such service was not recognised. He accepted this explanation on good faith at the time.

In 2021, the worker learned that contrary to his own employer’s practice, most of the other seven hospitals in this grouping did acknowledge and award incremental credit in respect of validated service in what are called community pharmacies.

The worker raised a grievance in March 2021 in accordance with the employer’s procedure. Ultimately, after initially refusing any movement up the incremental scale, the employer did adjust his incremental point up to point 12 in May 2021 on the basis that hiring difficulties meant that they must now recognise validated community experience for purposes of incremental credit for new and existing pharmacists.

The claim for retrospection was referred to stage 3 of the employer’s grievance process. The employer rejected the claim for retrospection which they stated was contrary to the hospital’s policy and it would be a cost increasing claim.

The worker is requesting retrospection on the loss of 9 increments for the period 2018 – 2021.

Summary of Employer’s Case:

The employer point is unwilling to concede the claim for retrospection.

The complainant signed a contract accepting his placement on the first point of the incremental scale in 2018 which conformed to the then, operative HSE Guidelines on terms and condition of Employment, March 2017. Section 23 of those guidelines provide that in the context of incremental credit and starting pay, incremental credit will be awarded in respect of previous experience in the Civil service, local authorities, health service and other public service and statutory agencies. Recognition of service in local or community pharmacies is not specified.

The employer did adjust their practices in 2021 as they found it difficult to hire pharmacists and adjusted his point from point 3 to point 12 in May 2021.

To concede this would be a cost- increasing claim.

Conclusions:

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The employer accepts that some hospitals in their group award incremental credit for previous service so there is no HSE imposed ban on recognition of community service for pharmacists.

Concerning the employer’s characterisation of concession of this claim as a cost increasing claim, there are 14-15 basic grade pharmacists in the hospital, but the employer was unable to identify their current incremental points or how many of these had prior community service and would be seeking retrospection, were retrospection to be awarded to this worker.

The HSE, National Financial Payroll, NFR 203,2020, page 38, in their section on Pharmacists, stated that

“On permanent appointment, an employee is entitled to full incremental credit in respect of previous recognised service”

The Employee Relations Manager observed that the rule was silent on service in community pharmacies.

I consider that there was no impediment to recognising his previous service from at least 2020. The employer states that placement on the 6th point was permissible from 2020.

I recommend that the employer pay the worker the difference between point 2, (his incremental point in 2019) and point 6, plus the difference between point 3 (his incremental point in 2020) and point 7 of the scale. On the basis of the scales presented at the hearing these sums amount to

€21,810

I recommend that the parties accept this outcome.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the employer pay the worker the difference between point 2, (his incremental point in 2019) and point 6, plus the difference between point 3, (his incremental point in 2020) and point 7 of the scale. On the basis of the scales presented at the hearing these sums amount to €21,810.