INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HEALTH SERVICES EXECUTIVE (NORTH WEST)
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR19237/04/TB.
2. The Claimant commenced employment as a Medical Secretary with the North Western Health Board on the 1st May 2001. She is seeking entitlement to credit for service which she had previously as a Clerical Officer with Bus Eireann from March 1991 to February, 1999. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 4th May, 2005, the Rights Commissioner issued his recommendation as follows:
“At present the claimant is on the 4th point of the Clerical Officer Library Assistant grade 3 scale with a salary of €23,421. If the Unions claim was conceded in full she would be on point 12 of that scale and a salary of €31,981.
I recommend that the claimant be placed on the 8th point of the scale which carried a salary of €27,240 with effect from the 1st January, 2005”.
On the 3rd June, 2005 the Health Services Executive appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th October, 2006.
3.1 Management is appealing the Right's Commissioner's recommendation as it is in breach of the National Agreement on Incremental Credit. The National Agreement reached between the Health Services Executive Employer's Agency/IBEC and IMPACT Trade union (March 2000) provided for incremental credit to be granted in respect of previous relevant experience whether in Ireland or subject to clarification abroad (details supplied to the Court).
2. Management sought clarification as to whether employment with CIE came within the scope of employers covered in the Agreement. Management were advised on the 21st March, 2001 that CIE did not come within the agreed list of Employer/Organisation for incremental credit.
3. The Claimant was made aware on the 26th March, 2001 that incremental credit could be granted for previous similar employment in the Civil Service, Local Authority. She was aware of this fact two months before signing her Acceptance of Office Form confirming that she accepted her post in the Health Board.
4. Any wish to change the terms of the National Agreement reached in March 2000, would need to be negotiated at national level and with the relevant parties.
4.1 The Claimant's initial exchanges with the H.R. Department of the Health Board by phone was given the legitimate expectations of full recognition for 8 years service with Bus Eireann with terms of incremental assimilation. The subsequent reversals of that commitment was unjust and unfair.
2. Other public sector employers including the former Midland Health Board and Donegal County Council have recognised previous service for incremental purposes in respect of employers not set out in the HSEA list.
3. Management have previously granted incremental credit for experience not necessarily deemed to be relevant, in the context of staff who are non nursing, or nursing background, moving into administration/managerial positions and have exercised positive discrimination in the process.
4. The Midland Health Board choose to exercise positive discrimination in relation to the previous service experience of staff entering the employment at Clerical Officer level and accordingly there is no reason why that practice could not be emulated by the HSE/NW.
5. The selection criteria utilised by the Board for the recruitment of Clerical Officers specifically directs that a board as opposed to a narrow interpretation be taken by the interview panel, with respect of previous relevant service. To attempt to reconcile that with conservative interpretation when it comes to incremental credit is unjust and unfair.
Having considered the oral and written submissions of both parties the Court is of the view that there were unique circumstances prevailing in this case as the worker had an understanding prior to resigning from her previous position and prior to accepting the position in the North Western Health Board that her previous service with Bus�ireannwould be reckonable for incremental purposes. She was informed two months into her new contract that her understanding was incorrect.
The Court fully accepts that the agreement between HSEA/IBEC/IMPACT on relevant experience reckonable for incremental purposes does not extend to work experience in Bus�ireann. However, due to exceptional circumstances pertaining in this case, the Court concurs with recommendation of the Rights Commissioner and accordingly, upholds his recommendation.
The Court so decides.
Signed on behalf of the Labour Court
17th October, 2006______________________
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.