LCR22840

1.Appeal of Adjudication Officer Decision No(s)ADJ-00037645 CA-00049068

BACKGROUND:

2.The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 11 May 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on 5 October 2023.

DECISION:

This is an appeal against an Adjudication Officer’s Recommendation ADJ-00037645 on behalf of a Worker with the HSE.

The Worker contends that her position is incorrectly graded and that she should be correctly graded and remunerated at the grade ofChief Medical Scientist (Surveillance).She seeks that the Court recommend that she is regraded to that position, with retrospection to when she was appointed to the acting role ofMedical Scientist(Surveillance).

It is accepted that in November 2014 the Worker was appointed in an acting capacity to a temporarily vacated position ofMedical Scientist (Surveillance).

In June 2016 the Worker sought that the position in which she was acting should be graded asChief Medical Scientist (Surveillance).She contends that the post was held by previous incumbents in an acting capacity at the more senior grade ofChief Medical Scientist (Surveillance) but was downgraded in 2013. She contends that if HSE Circular 17/2013 had been applied in a timely manner the post would have been regularised at the grade ofChief Medical Scientist (Surveillance).

The Worker further contends that the roles ofChief Medical Scientist (Surveillance) andChief Medical Scientist (Microbiology) were subsequently merged which ultimately blocked the correct alignment of theChief Surveillance gradeto her post. The incorrect grading of her post has had a negative impact on service delivery.

Management’s position is that the Worker was appointed to a temporary position ofSpecialist Medical Scientist,following the upgrading of an existingMedical Scientistpost to that grade. The Worker was aware from the outset that she applied for the role ofSpecialist Medical Scientistand has acted in that post since November 2014. She was issued with a permanent contract as aSpecialist Medical Scientistin August 2021, in accordance with the terms of HSE Circular 68/20 - Confirmation in post of those in temporary higher appointments and regulation of temporary higher appointments. The Worker has not signed the permanent contract as she remains in dispute about the grading of that post.

Management’s position is that aChief Medical Scientistpost was lost during the moratorium. At no stage did the Worker carry out the role ofChief Medical Scientist (Surveillance). The worker is seeking to be appointed to a position that does not exist and for which there is no approved budget. The claim as presented is a cost increasing claim and precluded under the terms of the Public Service Agreement.

The Court has given careful consideration to the oral and written submissions of both parties.

The backdrop to this dispute is the moratorium on recruitment and promotion that arose during the global financial crisis as a result of which recruitment in the public sector came to a virtual standstill.The employer acknowledges that the impact of the moratorium was that individuals across the sector stepped up and undertook duties to ensure that services were delivered.

This dispute has a complex and protracted history. The Court was provided with extensive submissions about resourcing within the Laboratory Surveillance Service, and about other individuals - who are not the subject of this individual dispute - who undertook acting up positions at different times.

It is of some concern to the Court that the parties outline different perspectives and understanding of the core matter in dispute. Management told the Court that the Worker was appointed to a role that was upgraded to aSpecialist Medical Scientistpost,while the Worker submits that she has undertaken roles and responsibilities associated with the post of aChief Medical Scientist.The Worker is clearly aggrieved and holds the view that her career path and progression have been adversely affected by the actions of management.Management concedes that a lack of transparency about the appointment process for certain roles has complicated matters.

What is clear to the Court, and what is accepted by both sides, is that the Worker applied for and was appointed in an acting capacity to the position ofSpecialist Medical Scientistin November 2014.

Essentially, the Court is asked to recommend that the Worker be regraded to a position that management says does not exist and for which there is no approved budget. The Court is of the view that it is the role of management to decide on the allocation of resources and service delivery.

In light of the above, the Court is not able to recommend concession of the Worker’s claim for a regrading of her role to that ofChief Medical Scientist.

Having regard to the specific circumstances of this case as outlined at the hearing, the Court recommends that:

• The Employer pay the worker compensation of €8,000.
• The Worker accepts the current offer from the Employer of regularisation into the post of Special Medical Scientist.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
23 October 2023	Deputy Chairman