INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
MANUFACTURING SCIENCE FINANCE
1. Appeal by the Agency against Rights Commissioner's Recommendation No BC 397/95 concerning a worker's claim for regrading.
2. In 1988 the worker was asked by the Management of Eolas to transfer to a post in the Information Technology Department at the grade of Senior Scientific Officer. He had almost ten years service in this grade. The worker maintains that he received a commitment from Management that the new post would carry the grade of Principal Scientific Officer (P.S.O.). In 1994 Eolas became Forbairt and the undertaking which the worker understood was given to him was never implemented. The Union claimed that the worker should have been appointed to the grade of P.S.O. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner investigated the dispute in March 1996.
On the 1st April, 1996 the Rights Commissioner issued his recommendation as follows:
"In the light I must uphold the claim made on behalf of the claimant. I therefore recommend that the claimant be promoted to a P.S.O. grade effective from 1st March 1996."
(The worker was named in the Rights Commissioner's recommendation).
On the 10th April 1996 the Agency appealed the recommendation to the Labour Court. The Court heard the appeal on the 28th May 1996.
3. 1. The worker changed, by consent, to a post within the Information Technology Department. No competition was held but discussions took place between the claimant and his line management stating that a higher grade might be anticipated. The personnel department of Eolas was not a party to these discussions and the sanction of the Agency for a change of grade for the worker was not sought.
2. In 1989 the worker made a claim through his line manager for his grading to be reviewed in the light of his changed duties. As the public service embargo was in operation no mechanism was in place to formally address the claim. However Eolas applied a Higher Duty allowance to a large number of staff whom it adjudged to merit them and the claimant's case could have been dealt with in this manner. No such allowance was applied to the claimant by Eolas and no record of sanction for such allowances was sought by the line management.
3. The Annual Review Committee is the mechanism in place for review and consideration for promotions. In 1994 Forbairt put into effect the Eolas Annual Review Procedure, suspended during the embargo years, and 3 promotions were made. The claimant's case was considered but no recommendation was made for his promotion.
4. The Agency has reviewed subsequent applications but is of the view that it would not be appropriate to undertake a regrading based on a change of duties that occurred 7 years ago under a different organisation. Eolas had a period of 5 years to address the matter and did not do so.
5. The Agency cannot accept the Right's Commissioner's statements that "the worker did have substantial grounds for believing that the assurance given him in 1988 that he would be promoted to a P.S.O. grade on his transfer to the position in the I.T. Division, had been given to him by a person within the organisation competent and empowered to give such an undertaking".
"However superior to the decision of the annual review committee there were clear and categoric assurances given to the worker in 1988 that the promotion would be implemented".
It was well established in Eolas that there were two mechanisms for promotion 1. through competition 2. through the decision of the Annual Review Committee.
6. In a recent Labour Court Recommendation the Court recommended that promotions only be made through the proper procedures (LCR 15006). If the Rights Commissioner's recommendation is upheld the Agency could find itself in the position of staff being granted promotions, on the basis of agreements reached with superior officers in spite of Agency rules in place to regulate such issues.
4. 1. The vacancy which the worker was asked to fill in 1988 in the Information Technology Department was at P.S.O. level. The worker was informed by Management that because of the Government embargo he could not be promoted but that the intention was that, subject to satisfactory performance of the duties of the post, he would be promoted when circumstances allowed. He accepted the post on that basis.
2. When the worker submitted a claim for promotion in 1989 he was given reasonable grounds to expect that he would be promoted through an Annual Review System. In 1991 he was informed that his case would receive the highest priority in the Science and Technology Promotion Groups. In 1992 a major dispute arose over personnel issues between Eolas and its parent department and the Annual Review System did not operate in 1992/1993.
3. The issue of the claimant's promotion was one of a number of personnel matters outstanding when Forbairt was established in 1994. During 1994/95 the worker continued to press his claim for promotion.
4. The employee concerned is the only worker to fill a P.S.O. vacancy, during the six years that Eolas existed, who has not been promoted. In May 1988 he had been the first person appointed to fill a P.S.O. post vacancy since the establishment of Eolas. In late 1988 a new Management team took over Eolas. Under this new team those appointed to promotional posts were paid a Higher Duty Allowance. The worker was the only person appointed to fill a P.S.O. vacancy prior to the new Management team. Had his appointment been made after the new Management took over, the present claim would not have arisen.
5. Accepting the appointment he was offered in 1988 involved a significant change in career for the worker. Previously he had been a "computer practitioner". He had not been so employed since 1988. The worker would not have been willing to cut himself off from career opportunities in this area but for the fact of the commitment given to him on promotion.
The Court, having considered all aspects of the issue as expressed by the parties in their oral and written submissions and given the unique circumstances of this case, decides that the claimant should be graded as a Principal Scientific Officer (P.S.O.), on a personal basis with effect from a current date. The grading appropriate to the particular job he fills is a matter to be decided separately.
The Rights Commissioner's recommendation to be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
11th June, 1996______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.