FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY FORSA TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Recommendation no. ADJ-00011251.
BACKGROUND:
2. This case concerns a claim by the Union on behalf of the Claimant that she was not assimilated to the correct point of the scale when she was promoted to a Clerical Grade VI position in March 2009, having acted in the post for over four years.
The Union said that HSE Circular 4 of 2009 states that all of an employee’s aggregate recognised service will be reckonable for the purposes of entitlement to long service increment.
The Employer said that the process of determining pay in respect of promotional posts at the time of the Claimant’s promotion was, and is clearly set out in page 7 of HSE Circular 71 of 2010.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 12 July 2018 the Adjudication Officer issued the following Recommendation:-
- “The process of determining pay in respect of the promotion of the Complainant in 2009, was set out in Circular 10/71 and I find that the Respondent correctly applied the process in the Complainant’s case. I note that in 2010, the Respondent’s Policy on Acting-Up in a Higher Capacity allows for incremental credit in situations where an employee is promoted to a higher post following a continuous period of acting-up in that post. I note that the Policy states: “It has immediate effect and replaces all previous instructions.” The Policy appears to have no retrospective effect and to find that it should have retrospective effect in the Complainant’s case would undoubtedly lead to knock on and repercussive claims. I cannot find that the Complainant’s claim should be conceded.
I do not find that the Complainant’s claim that she was appointed to the incorrect point of the scale on promotion to be well founded and her claim does not succeed”.
- “The process of determining pay in respect of the promotion of the Complainant in 2009, was set out in Circular 10/71 and I find that the Respondent correctly applied the process in the Complainant’s case. I note that in 2010, the Respondent’s Policy on Acting-Up in a Higher Capacity allows for incremental credit in situations where an employee is promoted to a higher post following a continuous period of acting-up in that post. I note that the Policy states: “It has immediate effect and replaces all previous instructions.” The Policy appears to have no retrospective effect and to find that it should have retrospective effect in the Complainant’s case would undoubtedly lead to knock on and repercussive claims. I cannot find that the Complainant’s claim should be conceded.
The Claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 9 August 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 12 September 2018.
DECISION:
This is an appeal by an employee against the Recommendation of an Adjudication Officer Adj-00011251 in her claim against her employer under the Industrial Relations Act, 1969. The Claimant claimed that she was not assimilated to the correct point of the scale when she was promoted to a Clerical Grade VI position in March 2009, having acted in the post for over four years. She claimed that she had been acting in a Grade IV post continuously from 18thOctober 2004 prior to her permanent appointment to a Grade IV post. She contended that she should have been credited with her acting-up service which would have placed her on the first Long Service Increment on promotion.
The Union on behalf of the Claimant sought application of the HSE“Policy on Acting-Up in a Higher Capacity”January 2010. This policy provided that in situations where an employee is promoted having been in a continuous period of acting-up in the promotional post, then she/he will receive incremental credit in respect of the continuous period of acting-up.
Management disputed the claim and stated that the Claimant had been correctly assimilated on to the Grade IV scale in accordance with the rules under Circular 10/71“Appointment and Conditions of Service of Officers and Servants under Health Boards”which were the rules governing assimilation on promotion at the time. The effect of this Circular placed the Claimant on the maximum point of the scale. Management stated that time spent acting in a higher capacity prior to appointment does not allow access to the Long Service Increment on the promoted scale. Long Service Increments are only payable upon completion of three years’ service at the top point of the salary scale.
The Court notes that both parties accept that on promotion to the higher scale in 2009, Circular 10/71 was correctly applied to the Claimant. The Union, however, sought application of the“Policy on Acting-Up in a Higher Capacity”January 2010 to apply retrospectively to the Claimant. However, the Court notes that this Policy is very clear. At the outset it clearly states that“it has immediate effect and replaces all previous instructions”.Additionally, the Court notes that it does not comprehend ‘Long Service Increments’. On that basis the Court does not recommend application of the January 2010 Policy.
Furthermore, the Union sought application of HSE HR Circular 004/2009 which recognised nursing service gained outside the Irish public health service as reckonable service for Long Service Increments. The Court is of the view that this Circular applied in a different context and was restricted to certain conditions at the time.
Therefore, the Court finds that the Claimant was not appointed to an incorrect point of the scale on promotion in March 2009 and accordingly, concurs with the Adjudication Officer’s Recommendation that her claim is not well founded. The appeal is rejected.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
14 September, 2018Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.