ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000198

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 10/02/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Complainant’s Submission and Presentation:

The main issue is the date of my promotion which the respondent maintains is 1 October 2013. I believe that the de facto date of my promotion is 3 November 2010.

It would not have been possible for the respondent to redeploy me from a Grade VII post to a Grade VIII post in 2010 unless it considered that I was already a Grade VIII at that time.

Local management have confirmed in writing that I was being assigned to Grade VIII duties and that my substantive position from 3 November 2010 was Coordinator Services, a Grade VIII post.

The HR Circular 017/2013 which dealt with the regularisation of staff states that the arrangements for starting pay on promotion would not apply and therefore it is obvious that such staff were being regularised and not being promoted. The letter which accompanied my contract also states that I was being regularised.

The respondent’s position is contradictory in holding that staff who were regularised were not deemed promoted for pay purposes but were deemed promoted as regards determining annual leave entitlement.

I have been pursuing a regrading claim since 2003 and have two favourable Recommendations from the Rights Commissioners Service which the employer has failed to implement.

Respondent’s Submission and Presentation:

The complainant met the criteria for regularisation set out in Circular 017/2013 and he was therefore offered a contract in this regard effective as of 1 October 2013.

The complainant signed the contract and was duly appointed as Grade VIII in April 2014, backdated to 1 October 2013. The contract contained a clause which stated that “your terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the employer.”

In November 2014 the complainant was informed by local management that in accordance with HR Circular 006/2014 (and clarification from the Asst. National Director of HR) his annual leave entitlement was being reduced from 32 days to 30 days. This circular applied to new entrants and persons promoted on or after 1 April 2012. The clarification confirmed that the circular applied to employees who were in acting positions and who were regularised as a result of Circular 017/2013. The complainant is not being treated any differently than other employees in similar circumstances.

The complainant’s position could not be formalised in previous years due to the moratorium on recruitment and promotion in the Public Service.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

N/A

Legislation involved and requirements of legislation:

N/A

Decision:

There is no doubt that the complainant has been pursuing the issue of regrading for a considerable length of time. I note that that the letter of 1 November 2010 stated that he was being assigned to Grade VIII duties and that this would be his substantive post. The letter went on to say that he would continue to be paid an acting allowance pending the implementation of the Rights Commissioners Recommendations. As it happened the modus operandi for this process was provided by HR Circular 017/2013 and, given the constraints under which the Health Service was operating at that time, it is difficult to see how else the regularisation of the complainant’s position could have been achieved. The complainant accepted the contract offered in April 2014 containing the clause relating to the revision of terms and conditions. The covering letter made it clear that the contract had its origin in Circular 017/2013.

I therefore find that the complainant was covered by HR Circular 06/2014 dealing with the standardisation of Annual Leave arrangements and that his leave entitlement was accordingly reduced. National Agreements by their very nature cannot deal with every individual situation and cannot absolutely satisfy everyone. Given the particular history of the complainant’s issue I recommend to the parties that the complainant retain his 32 days entitlement for the current leave year on a personal basis, that this reduce to 31 days in the following leave year and thereafter to the standard allowance (currently 30 days).     

Dated:   20^th April 2016