ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000203

Dispute for Resolution:

Date of Adjudication Hearing: 16/02/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act 1946, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

The Claim at issue:

The claimant is currently a Clerical Officer (Grade 3). She seeks that this position be evaluated and regraded to Grade 5, with full retrospection.

Complainant’s Submission and Presentation:

The claimant commenced work with the respondent in May 2007 .The role was described as Administrative Assistant, Grade 3. The claimant agreed to take on the co ordination of the staff roster, shortly after commencement in employment.

 The respondent services expanded into the community and the claimant’s role expanded further to taking on additional responsibilities in rostering up to 20 relief staff. The respondent service has diversified during the time of the claimant’s employment to include one day service and nine community houses.

The claimant contended that while the service made appointments at Community Liaison Officers and Social Care Leaders, the support role of administrative assistance has been overlooked. The claimant contended that Grade 3 salary scale is not reflective of the work she now actually does. She pointed to the devolution of the service and the enhanced management structure of

Area Manager

Two Day Service managers

 Two Community Liaison Officer

As confirmation of the expansion of the service. In addition to this, the relief panel of staff is now called upon more often to deal with the complexities and enhanced flexibilities of the service. 80% of the claimants duties are taken up on “ co-ordinating the relief team hours” The claimant submitted a proposed job description to accompany the claim for Grade 5 salary scale ,using the headings of planning, decision making , co ordination , pay sheets and other tasks .

The claimant was requested to submit this list of duties following a meeting with local HR on 6 March 2014, no follow up to the claim had ensued.

The complainant submitted her contract and job description from 2007 to the Adjudicator, as requested on 25 February, 2016. This was copied to the respondent for comment and response.

Respondent’s Submission and Presentation:

The respondent made a Preliminary Issue argument in rejecting the claim.

The respondent argued that the Adjudicator was prevented from dealing with the claim under Section 13(2) of the Industrial Relations Acts 1969-1990.

The respondent introduced the service as a Section 38 Voluntary Agency, which is covered by the Human Resource Circulars of the HSE. The service provides support for children and adults with Intellectual Disability and Autism. In 2009, the HSE placed a moratorium on recruitment and promotions. Section 4.2 of HR Circular (015/2009) stated:

“….. No further requests to upgrade or evaluate post will be considered for the duration of the moratorium. All such requests are suspended with immediate effect….”

The respondent contended that the claim was barred due to both the lack of a job evaluation mechanism open to them and the fact that the claim was a cost increasing claim prohibited by a number of national agreements i.e. Croke Park, Haddington Rd and Lansdowne Rd.

The respondent was keen to acknowledge the hard work and commitment of the claimant and didn’t want the current position to been seen as a negative reflection on the quality of her work.

The respondent position was summarised:

The HSE has given the service to understand that the tools for job evaluation will be realised in mid 2016 and this would provide a platform for progression.

The current claim is cost increasing relying on a Grade 5 Commencement rate of €40,209 and the current Grade 3 Pascale of €37,341.

The respondent wanted the claim to be seen as prohibited by National Agreement and premature.

Findings:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. The claim is also covered by section 13 of the Industrial relations Act 1946.

I have read and considered all oral and written submissions from the parties. While I received the claimant’s submission on the 2007 contract, as requested, I did not receive the requested response from the respondent on this. I did not receive the anticipated supplementary submission from the respondent . I issued a reminder . I will now proceed to address the claim .

Section 13(2) of The IR Acts, is not, in my opinion of relevance here, given that the respondent was invited to the WRC and was permitted to make an objection at the outset. This did not happen. The claim is lodged by one employee and I propose to deal with it on that basis.

I find that both parties acknowledge that the service has changed enormously since 2007 and it is accepted that the claimant holds a key role in the respondent service. What separates the parties is the impediment often referred to as the flood gates argument i.e. if one person succeeds in their claim then many more will follow in pursuit. I have no wish to cause that effect in a service that is challenged to deliver an essential service. However, in addressing this claim, I need to examine the unique facts of the case as they were presented and responded to.

I have examined the job description as submitted from the entry grade position of 2007. I am struck by the static nature of the job description as opposed to the mobility and flexibility referred to in the 2016 version submitted. Taken in tandem to what I heard at the hearing, the job now carries a much higher level of decision making, planning and responsibility. This was not disputed .I am guided by the last paragraph of the 2007 job description which stated that employees of the service were required to hold high levels of flexibility, willingness and ability to develop new approaches to their work as service user needs develop . This seems to me, what has followed in this case.

The claim did not succeed through internal discussion due to the retirement and delayed replacement of the HR function. I find that the impediments placed in the claimant’s path at the hearing were not advanced locally i.e. the reference to national agreements.

The claimant advanced an adjudicators finding from a parallel service in support of the view that more could be done by the respondent to examine the case. This recommendation took account of a job evaluation exercise completed through a review of all administration posts and recommended an upgrade with a commensurate start date. This indicates to me a certain relaxation in the parameters of the moratorium described.

I have also considered the commentary of the Labour Court in LCR 21119, where St James Hospital, a constituent of the HSE, confirmed that they had upgraded two Nursing positions following a recommendation of an expert review group from April 2015; this corresponded to the time frame of the claimants claim and again pointed to some element of discretion .

In LCR 20435, the Labour Court found that a Lecturer should be aligned to the” established rate for the work he performs “. This also occurred during the life time of the National Agreements.

What seems to be at the core of this case is that the respondent service is reluctant to advance the matter without the backing and most likely funding from the HSE?

I have deliberated on this position and I find it to be unreasonable. Development and Diversification of a service is a collective process and should take account of all employees and in particular their contribution to that change process. I do not have the expertise to order a substantive regrade for the claimant, but I do not believe it is fair to ask her to engage in a protracted waiting period without clear time lines for the outline of an evaluation mechanism or appeals mechanism to process her claim.

I accept the argument advanced on behalf of the complainant that her job has changed materially since 2007 and that has she sought a Grade 5 Salary. In addition, I am mindful of the positive regard expressed by the respondent towards the complainant’s role.

Decision:

Given the incremental expansion of the Management and care roles within the service which omitted to include the claimant’s evolutionary role, I find that the claimant should be prioritised in the anticipated job evaluation exercise to address the substantive nature of the claim. I recommend that the respondent service fast track discussions with the HSE in this regard. In the meantime, I recommend that the claimant be placed on a temporary appointment scale of Grade 5 from the date of this recommendation subject to the outcome of the job evaluation process. This would be red circled to the claimant .

Patsy Doyle     Adjudicator

Dated:   7/4/2016