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LCR22654

FULL RECOMMENDATION


CD/22/163
ADJ-00025129 CA-00031703-001
DECISION  NO. LCR22654

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969


PARTIES :
HEALTH SERVICE EXECUTIVE
(REPRESENTED BY HEALTH SERVICE EXECUTIVE)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)


DIVISION :

Chairman: Mr Geraghty
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:

1. Appeal of Adjudication Officer Decision No(s) ADJ-00025129 CA-00031703-001.

BACKGROUND:

2. The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 18 August 2022 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 15 July 2022 the Adjudication Officer issued the following Recommendation:

“I recommend that the worker be paid €61,726.00 in respect of arrears of pay due to him. I further recommend that the worker be paid an additional €5,000 in compensation for the inordinate delays in processing this issue at local level and bringing the matter to a conclusion.’’

A Labour Court hearing took place in a virtual setting on 6 October 2022.

Summary of Employer arguments.

  • 1. The Worker was regularised in a higher grade in accordance with HSE Circular 0017/2013. The correct arrangements were applied to him.
  • 2. It is acknowledged that there was some confusion about this matter but the Employer believes that this was resolved at a meeting with the Worker and his Union representative at a meeting in 2021.
    3. The Employer was surprised at the subsequent WRC Decision.
Summary of Union arguments.
  • 1. The 2013 Circular was applied incorrectly to the Worker’s starting pay in the higher grade as account was not taken of a shift allowance.

    2. This was acknowledged by the HSE and the figure for arrears due in the Adjudication Officer’s Decision was provided by the Employer.

DECISION :

On the basis of the submissions made, the Court is satisfied that the Worker was treated, when assigned to act on higher duties, in accordance with the agreed arrangements that were applicable at the time and that the subsequent calculation of his pay, upon his regularisation in the higher grade, was carried out in accordance with HSE Circular 0017/2013.

However, the Court cannot avoid noting that it took until end 2021 before the Employer was in a position to confirm that this was the case and that, in the interim, both the Worker and the Adjudication Officer were misled into believing that arrears of €61,726 were accepted by the Employer as owing to the Worker. This is not just extraordinary, it is extremely unfair to the Worker. It created an understandable expectation on his part.

The Court is mindful not to issue any Recommendation that could lead to follow on claims by other people who were treated equally in accordance with the agreed arrangements. However, the Court also has to be mindful of the invidious position in which the Worker has been placed due to the inability of the Employer to readily identify the correct application of its own procedures.

Accordingly, the Court believes that compensation in the amount of €10,000 should be paid by the Employer to the Worker and the Court so recommends.

Signed on behalf of the Labour Court
Tom Geraghty
TH ______________________
7 October 2022 Deputy Chairman


NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.