FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY PNA) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Grievance concerning loss of earnings.
BACKGROUND:
2. This dispute concerns the Worker's claim that he is entitled to have his award in respect of loss of earnings reckonable for calculation of his pension.
UNION’S ARGUMENTS:
3. 1. The Worker received two separate payments in relation to his loss of earnings in July and August 2016.
2. The Worker paid superannuation and pension levy on these earnings.
3. The formula agreed for calculation of loss of earnings is that recommended by the Labour Court (LCR 19995) in relation to compensation for loss of earnings under the Public Service Agreement.
EMPLOYER'S ARGUMENTS:
4. 1. This claim is not covered by the Public Service Agreement on allowances as this allowance was not abolished.
2. This claim contravenes DPER pension policy and is a cost increasing claim which is prohibited under the terms of the Public Service Stability Agreement 2018-2020 (Section 8).
3. The deduction of superannuation contributions from the compensation payments was due to a payroll coding error. The worker received a full refund in respect of the incorrect deductionsmade as a result of this coding error.
RECOMMENDATION:
The issue in dispute between the parties is the pensionability of compensation the worker received for non-payment of an allowance for a period of time. This is a section 20 (1) IR Act 1969 referral which gives rise to a preliminary issue which the Court has decided to address first.
The HSE in an apparent contravention of the Grievance and Disciplinary procedure agreed between the HSE and the Health Unions objected to an Adjudication Officer hearing the case at first instance. The Labour Court at the hearing afforded the HSE an opportunity to set out the rationale behind not complying with their own collective agreement and the rationale behind not attending at first instance but agreeing to attend at the Labour Court.
The HSE did not dispute that they have a collective agreement with the Health Unions that allows for grievances to be submitted to adjudication. The Representative of the HSE informed the Court that they did not believe it was appropriate for an issue of this nature to go before an Adjudication Officer as there could be knock on consequences. The Representative of the HSE advised the Court that they were acting under an instruction from DPER. She then went on to clarify that they had not received an instruction in relation to this case but were relying on an instruction that had issued some years earlier. They did not include a copy of same with their submission nor had they a copy with them to provide to the Court.
The Unions position is that there is nothing in the Grievance Procedure which prevented this claim being processed by an Adjudication officer and there had not been any discussions with the Union to that effect.
The Court notes that there are agreed procedures between the HSE and the Health Trade Unions. In instances where there are agreed procedures the Court upholds the procedures unless the parties to the procedure agree to change same. If the Court were to proceed to hear this case as referred it would be colluding with one party to breach an agreed procedure. It is not open to one party to the procedure to decide to exclude a particular issue from that agreed procedure.
The Court recommends that the case be processed in line with the agreed procedure.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
25 April 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.