FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY QUINN DILLON SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner R-084571-Ir-09/SR.
BACKGROUND:
2. The issue concerns a worker who is seeking an upgrade to Grade VII on the basis of having previously been paid an appropriate responsibility allowance. The worker contends that she is entitled to be upgraded in line with the provisions of the Agreements concluded between the parties at the time.
Management's position is that the worker has no entitlement to the upgrade as under the McDonald Agreement of 2005, the worker was not in an acting post or in receipt of the allowance on an ongoing basis. Management further contend that the worker was not entitled to the upgrade under a local HSE/IMPACT Agreement as she was not in receipt of the allowance continuously prior to 1st January 2004 and still in receipt of the allowance in January 2007.
The matter was referred to a Rights Commissioner for investigation. His recommendation issued on the 16th June 2010. He recommended that the worker be upgraded to Grade VII and also that she receive €1000 compensation.
On the 23rd July 2010, the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 15th February 2012.
WORKER'S ARGUMENTS:
3. 1. The worker herself sought that the allowance would no longer be paid on the basis that the publication for which she was paid the allowance would not be continuing. When the publication did continue, the worker sought the repayment of the allowance which, if it had been applied appropriately would have entitled her to the upgrade.
2. The appeals committee which deal with the repayment of the allowance, recommended that it be considered for repayment. As Management failed to implement the Committees recommendations, it resulted in the worker being denied the upgrade.
EMPLOYER'S ARGUMENTS:
4. 1. The worker did not qualify for upgrade under the McDonald Agreement or the Agreement concluded between the HSE and IMPACT.
2. The Appeals Committee recommended that the reallocation of the allowance be "considered". The matter was considered but the allowance was not re-activated.
3. The claim cannot be conceded on the basis of the provisions of Section 1.27 of the Public Service Agreement 2010-2014 which provides that no claims can be processed during the lifetime of the Agreement.
DECISION:
It seems clear to the Court that the Claimant's claim for an upgrade was rejected by the Appeals Committee to which the claim was referred. It is also clear that the Committee was not authorised by its terms of reference to make a formal recommendation that the Claimant be paid a responsibility allowance.
In these circumstances the recommendation which the Committee did make must be viewed as an ad hoc suggestion rather then a third party recommendation in the normal industrial relations sense. Whereas the parties would normally be expected to accept the outcome of internal dispute resolutions procedures the nature of the recommendation made in this case is not in that category.
The Court has considerable sympathy for the position in which the Claimant found herself and, in the Court's view the manner in which the matter was handled by her employer left much to be desired. Nevertheless, in light of all the circumstances of the case and in particular having regard to the terms of the Public Service Agreement 2010 - 2014 the court has concluded that the Rights commissioner's recommendation cannot stand.
Accordingly the employer's appeal is allowed and Rights Commissioner's recommendation is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
23rd February 2012.______________________
AH.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.