AD9873

FULL RECOMMENDATION CD/98/435 APPEAL DECISIONNO.AD9873 (241/98) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL REHABILITATION BOARD (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill

SUBJECT:
1. Appeal against Rights Commissioner's Recommendation IR241/98CW.



BACKGROUND:

2. The dispute concerns a claim by the Union that the National Rehabilitation Board made a decision to discontinue a "red-circled" rate of pay on behalf of one of its members.

The worker commenced employment with the National Rehabilitation Board in 1971 as a Placement Officer. In 1991, he was appointed to the position of Area Manager in the North West. This post was designated Higher Executive Officer grade with an additional 15% incorporated into the remuneration package. In 1992, it was mutually agreed that the worker be transferred back to Dublin for health and personal reasons and be allowed to retain his salary (i.e. HEO + 15%).

The worker subsequently applied for an Advisor Post in Cavan. It was a HEO post without the 15% allowance.

The National Rehabilitation Board states that it was entitled to change the "red-circled" agreement because the worker had opted to transfer from Dublin to Cavan. The worker was aware that the 15% allowance did not apply to this post.

The dispute was referred to a Rights Commissioner for investigation. A Rights Commissioner's hearing took place on the 4th of September, 1998. The Rights Commissioner recommended as follows:-

"I recommend that the Board offers and the worker
accepts a 'personal rate' (only for Cavan) of the HEO
on plus 6% from the 6th of January, 1998."


(The worker was named in the Rights Commissioner's Recommendation).

Both parties appealed the recommendation to the Labour Court on the 23rd and 25th of September, 1998 respectively in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal on the 26th of November, 1998.



UNION'S ARGUMENTS:

3. 1. The worker is entitled to hold his "red-circled" arrangement as and from the 6th of January, 1998.

2. The change of location for the worker was no reason to abolish a "personal rate". There is precedent for holding a personal rate even with a change of location.

3. The advertisement for the Cavan post did not state the grade or salary.

4. The worker has twenty-six year's service with the National Rehabilitation Board. The pension implications for the worker will be considerable if he is not allowed to maintain his "personal rate".



EMPLOYER'S ARGUMENTS:

4. 1. The worker was aware when applying for the Cavan post that it involved a lower rate of pay.

2. The "personal rate" was completely dependent on the Dublin location.

3. The Board believes that the recommendation of the Rights Commissioner is untenable and does not take account of the claimant's voluntary actions.

4. The worker accepted the Advisor Post on his own volition and in doing so, accepted the terms and conditions attached to the position.




DECISION:

The matter now before the Court was dealt with by the Board on compassionate grounds in 1992 when the claimant was relocated to Dublin. It is now accepted that his decision to seek a transfer to Cavan was necessitated by the most compelling of personal circumstances. Against this background, the Court considers that the Board should now respond to the present situation with the same commendable degree of compassion which it showed in 1992.


On the basis that the circumstances pertaining in this case are quite exceptional and that it does not constitute a precedent for any purpose in the future, the Court considers that the red-circling arrangements conceded to the claimant in 1992 should not be terminated.

The recommendation of the Rights Commissioner is varied accordingly.



Signed on behalf of the Labour Court



Kevin Duffy
3rd December, 1998______________________
L.W./D.T.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.