INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
AN BORD PLEANALA
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioners Recommendation IR15360/03/TB.
2. The appeal concerns a worker who was promoted to the position of Senior Administrative Officer(SAO) on the 29th January, 2001. The Union reached agreement with An Bord Pleanala for a revised interim structure arising from new responsibilities under the Planning and Development Act, 2000. These included new opportunities for positions at SAO level, one of which the claimant applied for and was successful in a confined competition. The promotion was one of sixteen for which the Board received sanction. The Union claimed that the appointment was backdated to August, 2000 and that this should be the base date for future incremental increases. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 24th October, 2003 the Rights Commissioner issued his recommendation as follows:
"Having considered the matter carefully I do not recommend in favour of the Union position."
On the 3rd December, 2003, the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 19th March, 2004.
3. 1. The Employer communicated with the claimant on the 28th March, 2001 offering him the position with a view to backdating his appointment to 1st August, 2000. He accepted his appointment on 28th March, 2001 and took up his new position. He was paid the full arrears backdated to 1st August, 2000. The worker believed his incremental date was 1st August, 2001. The letter of 28th March, 2001 clearly stated that "his salary will be the first point on the SAO scale and that the Board is prepared to make the offer effective from 1st August, 2000 in this respect".
2. From August 2000 to January, 2001 the claimant,while working as a Senior Executive Officer, undertook extra duties which involved work more appropriate to the SAO grade. He demonstrated significant cooperation and loyalty in a highly pressurised job. The claimant considered that the agreement of the Board to backdate his appointment was in recognition of this commitment.
3. The claim is made on an individual basis. The Union would have no difficulty to its concession on a red circled basis.
4. 1. The Board's offer to backdate certain promotions that would arise to August, 2000 was made during negotiations, as a gesture of goodwill. It was never intended to backdate any worker's incremental date because of the implications this might have. The offer was accepted. It was not queried nor was clarification sought on any aspect by the Union.
2. A total of sixteen staff were paid back money arising from the Board's offer. Some received over one year's backmoney. Any additional incremental credit would impose an added financial burden on the Board.
3. The Board could not agree to a situation where a worker gets incremental credit/recognition for a situation where he was not performing the duties of the grade at the time. Increments are given in respect of satisfactory service in the grade. The claimant did not have service in the SAO grade nor did he perform the services of the grade prior to 29th January, 2001.
The letter of offer sent by the Board to the claimant dated 28th March, 2001 appears to be ambiguous in referring to the effective date of the offer. It is ,however, capable of being interpreted as offering retrospective effect only in respect of salary. This interpretation is consistent with the acknowledged practice of the Board which appears to have been accepted by all others who were promoted at the same time.
In the circumstances the Court agrees with the conclusion reached by the Rights Commissioner. Accordingly, the Rights Commissioner's recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
25th March, 2004______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.