FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Recommendation of A Rights Commissioner r-088167-ir-09/EOS.
BACKGROUND:
2. The issue concerns a Chef employed at Cloonmahon Residential Care Centre. The Chef is assigned at Chef 1 level and is responsible for the kitchen at Cloonmahon. The claimant has taken over the position of responsibility from a colleague who retired and is seeking re-assignment to the Executive Chef Grade.
Management's position is that both the retired worker and her replacement were both remunerated in line with the Chef's report of 2000 and that the re-grading as sought cannot be conceded.
The Union's position is that the previous Chef 1 Manager was paid at a different grade and is seeking that the same terms and conditions be applied for the claimant.
The matter was referred to a Rights Commissioner for investigation. Her recommendation issued on the 13th August 2010 and did not recommend a re-grading on the basis of the Chef's report which was effectively deemed a National Agreement between the relevant parties. On the basis of the additional responsibility the Rights Commissioner recommended that the worker be paid an allowance on the basis of the additional responsibility from the date of the previous incumbents retirement.
On the 9th September 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 the 15th February 2012.
MANAGEMENT'S ARGUMENTS:
3 1. Both workers were paid at the agreed rates and in line with the provisions of the Chef's report. It would be inappropriate to pay an allowance in this case, as the previous job holder was not in receipt of the allowance.
UNION'S ARGUMENTS:
4. 1. The workers were not paid at the same level. The previous jobholder was paid at a higher rate than the claimant who is now seeking that she be paid at the same level on the basis of having taken on the additional responsibility.
DECISION:
It emerged in the course of the hearing that a serious disagreement exists between the parties in relation to the rate actually paid to the claimant's predecessor in the post in issue. The Union's original claim was predicated on its belief that the post previously carried the allowance awarded to the claimant by the Rights Commissioner. The HSE told the Court that the claimant's predecessor was paid the Chef 1 rate and no allowance.
It seems extraordinary that disagreement on this fundamental factual issue only emerged at this stage. Nevertheless, it is of crucial importance that this mater be resolved.
The employer should now establish definitively what the Claimant's predecessor in the post was paid by reference to its pay record. These records should be provided to the union and the Court. In the event of those records disclosing that the previous holder of the position was paid the allowance, the claimant should receive it in line with the Rights Commissioner's recommendation. If the records show that the previous holder of the post was paid the same as the claimant, her claim cannot be upheld.
In the event of the claimant being paid the allowance it should be on a personal to holder basis and on the understanding that the allowance will not apply to any other person holding the post in issue.
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.