INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation IR6666/01/FL.
2. Barnardos is a national voluntary childcare agency providing services to children and families experiencing disadvantage. Funding for the organisation comes from a variety of sources including Health Boards, Government Departments, Local Partnerships as well as through voluntary fundraising.
The Union states that the claimant is a Clinical Psychologist. She worked for Barnardos from January, 1993 to August, 1999. In August, 1999 the claimant was granted leave of absence which continued until August, 2001 at which point she resigned from her post.
The Union states that the claimant's salary was determined by the Clinical Psychologist pay scale as set by the Department of Health and Children. This scale changed with effect from 1st August, 1996 following a claim from IMPACT trade union on behalf of Health Board Psychologists. The Union claims that Barnardos did not implement this pay award in the case of the claimant.
Barnardos state that the claimant is not entitled to any payment of arrears. It had agreed to pay the revised rate to the claimant had she returned to her post following her career break. However, she did not return to her post and resigned in August, 2001.
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 7th of August, 2002 the Rights Commissioner issued his recommendation as follows:-
" I am conscious of the difficulties that a charitable organisation such as this one experiences in trying to maintain funding for the invaluable services it provides. However, if they employ professional people and agree to pay them according to a scale that is generally applicable to such people, they are bound to honour that agreement.
Under the agreement reached in 2000, the scale for the claimant was changed with effect from the 1st August, 1996. Since the claimant had not severed her employee/employer relationship with the employer at that time, she was entitled to be paid the new scale from the date of its application.
On behalf of the employer, IBEC queried as to whether the case was properly before a Rights Commissioner, since the claimant was no longer an employee. I gave careful consideration to this argument. Section 8 of the Industrial Relations Act, 1990 defines a worker as "... an employee who is or was employed whether or not in the employment of the employer...." and defines an employer as " .... a person for whom one or more workers work or have worked..."
I therefore conclude that the matter is properly before me."
" I find that the claim succeeds. I recommend that the employer pay the claimant
€12,447.24 (£9, 803) in full settlement of her claim."
Barnardos appealed the Recommendation on the 26th September, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 5th December, 2003.
MANAGEMENT 'S ARGUMENTS:
3. 1. The organisation fulfilled its contractual obligation to pay the claimant on the Clinical Psychologist scale on appointment to the post of Family Worker. Furthermore, the organisation had agreed to implement the revised rate had the claimant returned to employment following her career break.
2. The claimant's post was created using voluntary funds and Barnardos received no statutory funding in respect of it. Any award would have to be paid out of voluntary funds, could not be recouped from a statutory source and as a result would impact directly on provision of services to families and children.
3. Barnardos offered to pay the claimant six months retrospection as it has done in a number of other cases. Concession of this claim could set a dangerous precedent for this independent organisation.
4. Management believe that the Rights Commissioner's award was excessive. This is a voluntary organisation and always had an independent pay policy which has endeavoured to maintain pace with the market.
4. 1. The Union is seeking the application of the terms of the worker's contract in relation to her agreed pay scale of Clinical Psychologist.
2. It is not acceptable that an organisation commits itself to paying a rate for the job and then renege on the agreement.
3. The worker should have moved from a salary scale of £29, 684 to £32, 962 with effect from 1st August,1996 together with any pay increases on the new scale up to the time she took her leave of absence in August,1999.
4. Barnardos state that because they were not party to the national discussions and were not aware of the national pay claim on behalf of Clinical Psychologist that they should not have to pay it. The Union cannot accept this argument.
5. There will be no knock-on effect if the claim is conceded.
In the course of the hearing of this appeal it became apparent to the Court that an alternative approach, involving the negotiation of a severance package for the claimant, might provide an amicable basis upon which the recommendation of the Rights Commissioner could be set aside.
In these circumstances the Court reserves its position in relation to the appeal and recommends that the parties resume discussions with a view to agreeing an acceptable ex-gratia severance payment. These discussions should conclude within one month of the date of this recommendation at which time the parties should report to the Court, which will then issue its determination on the appeal.
Signed on behalf of the Labour Court
10th December, 2003______________________
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.