ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00027050
Parties:
| Worker | Employer |
Anonymised Parties | A Medical Scientist | A Hospital |
Representatives | Terence Casey of Medical Laboratory Scientists Association (SIPTU) | Paul Hume, Group Employee Relations Manager HSE |
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 | CA-00034629 | 13/02/2020 |
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Date of Hearing: 09/03/2023
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 says she was not paid at the appropriate grade for a period of seven years. |
Summary of Workers Case:
The worker says that in 2014 she was asked to step into the role of Senior Medical Scientist with the assurance that her post would be formalised within a matter of months. Despite multiple discussions with the Laboratory Manager this post was never offered to her at a Senior Medical Scientist grade. She was advised the senior post was being held back. This dispute was taken up by the representative with the hospital in 2017 and 2018 but no progress was made. The worker submitted this dispute to the WRC on 13 February 2020. A WRC hearing was set for 9 December 2020 and the post was advertised 24 hours before the hearing took place. |
Summary of Employer’s Case:
The employer says that the post could not be regularised without an open competition, due to a moratorium there was no approval for this post to be advertised. However, in December 2020 the post was approved to proceed for competition and interviews were held in February 2021. The worker was successful and took up the post as Senior Medical Scientist LIS on 15 March 2021. The employer says this a dispute about back pay for the period from 2014 until 2021. Although sympathetic to the worker this amounts to a cost incurring claim which is prohibited under the legislation. The employer also queries whether the statute of limitations allows them to go back. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties and information given orally at the hearing. The facts regarding the appointment and role of the worker are not in dispute. The dispute is whether the worker’s position could have been regularised. The worker’s representative said that the worker’s position could have been regularised under HSE HR Circular 017/2013. The employer could not give any reasonable explanation as to why the worker’s position was not regularised in accordance with this Circular. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
It is my conclusion that the worker acted-up to the position of Senior Medical Scientist from 2014 until she was appointed to the position on a permanent basis on 15 March 2021. During the acting-up period she received no financial recognition for working in a higher grade. Whilst there was legislation in place to avoid cost incurring situations Circular 017/2013 allowed for the regularisation of acting positions where that process would be cost and WTE neutral. As the worker replaced someone who had left the post then those provisos would be met. In these circumstances I recommend that the worker receives the back pay for the difference between her actual pay and the pay she would have received if the provisions of HSE HR Circular 017/2013 had been applied.
Dated: 22nd June 2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
IR dispute – regularisation of position |