LCR22996

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038918 (IR-SC-00000239)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 25 January 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 18 December 2023 the Adjudication Officer issued the following Recommendation:

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

Taking into consideration the Workers grade as of March 2023 and in order to close the matter, it is recommended that the Employer pay the Worker €3,072 to compensate him. It should be noted that this recommendation is particular to the facts and circumstances of this individual Workers dispute only.’’

A Labour Court hearing took place on 13 June 2024.

DECISION:

Background to the Appeal

This is an appeal on behalf of the Minister for Housing, Local Government and Heritage (‘the Employer’) from a Recommendation of an Adjudication Officer (IR-SC-00000239, dated 18 December 2023) under section 13 of the Industrial Relations Act 1969 (‘the Act’). Notice of Appeal was received in the Court on 25 January 2024. The Court heard the appeal in Cork on 13 June 2024.

The Dispute

The Worker commenced employment with the Employer on 10 February 2003 as a Craft Gardener and was promoted to Chargehand Craft Gardener in March 2023. He referred a trade dispute under the Act to the Workplace Relations Commission on 28 April 2022. He outlined his complaint as follows:

“My employer, the Department of Housing, Local Government & Heritage – Muckross House, has not and continues not to remunerate me properly for the undertaking of ‘acting up’ functions and duties v/v a superior grade”.

The Worker is seeking compensation for loss of earnings, including pension accrual, in respect of periods of acting up, retrospective to March 2006, as a Chargehand Craft Gardener from the role of Craft Gardener. His claim succeeded at first instance where the Adjudication Officer awarded him compensation of €3,072.00.

The Worker’s Submission

The Worker submitted that he has acted up on a regular basis over the course of his employment as a Craft Gardener at Muckross House in Killarney and has assumed additional duties over and above those that are proper to his grade. He gave some examples of when he says this occurred. For example, he submits that he acted up in place of the Foreman from 3 March 2006 until 31 March 2006 when the latter was on annual leave. He also submits that he completed timesheets for all Garden Staff grades and received and delivered medical certificates for staff, collected and distributed payslips, locked up the Gardens Yard, supervised garden tours, signed off on invoices, arranged for repairs to machinery, interviewed applicants for seasonal employment, liaised with the Foreman in the Farmyard etc.

It is the Worker’s submission that, through his Union, he had entered into an agreement with the local Human Resources Manager in November 2021 that his position was to be regularised with appropriate retrospection to the position of Chargehand Craft Gardener.

The Employer’s Submission

It is submitted on behalf of the Employer that the Worker was not acting up as claimed because:

(a) He never received sanction for an acting-up arrangement from the appropriate authority i.e. the Head of Human Resources;

(b) He was made aware in 2014 that he was not entitled to an acting up arrangement and this was confirmed in 2019; and

(c) Financial remuneration for acting-up (when sanctioned) is only payable when an employee has been in the acting up position for at least 84 consecutive days.

Counsel for the Employer referred the Court to Circular Letter DPE123 Re State Industrial Employees – Acting-up Allowance – 84 day rule which she submitted represents the position agreed at Joint Industrial Council in relation to acting up.

Counsel also submitted that, on the basis of the foregoing, the recommendation of the Adjudication Officer should be set aside.

DPE123

By letter dated 11 September 2018, the Assistant Principal in the Public Service Pay & Pensions Division of the Department of Public Expenditure and Reform wrote as follows to all Personnel Officer and HR Managers:

“Re. State Industrial Employees – Acting Up Allowance – 84 day rule

The above matter has been discussed at recent Joint Industrial Council (JIC) meetings.

Acting-up arrangements are only ever put in place in exceptional circumstances, and acting up allowances are only paid where the staff member will be in the acting-up position for at least 84 consecutive days.

Currently payment of the acting-up allowance only commences on the completion of the first 84 consecutive days (arrears are paid at this stage).

With immediate effect, in the case of State industrial Employees only, it has been agreed to approve the payment of acting-up allowances from the commencement of the acting-up assignment provided the formally approved acting-up assignment will be for a period in excess of 84 consecutive days …”

Discussion and Decision

It has not been established that the Worker met the conditions set out in Circular Letter DPE123 of 11 September 2018. In those circumstances, the claim is not well-founded and the appeal succeeds.

The Recommendation of the Adjudication Office is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CN	______________________
9th July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nerney, Court Secretary.