ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000833

Dispute for Resolution:

Dates of Adjudication Hearing: 22/04/2016 & 07/07/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 and the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 27^th November 2015 and gave the Parties an opportunity to be heard and to present any relevant evidence. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. The Complainant was represented by his Trade Union and a HR Manager represented the Respondent. This dispute was partially heard on 22^nd April 2016 and was adjourned to enable the Complainant’s former Line Manager to give evidence on the adjourned date of 7^th July 2016, when the hearing concluded. All evidence and documentation was considered in arriving at the decision herein.

Complainant’s Submission and Presentation:

The Complainant sought resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to a period of employment in a particular Unit (hereinafter referred to as ‘Unit A’) of the Respondent from October 2011 until December 2015, where he had been performing duties assigned well above his Grade 3 level for a considerable period of time. He sought recognition and/or compensation at the requisite Grade 5 of the Staff Officer Grades scale in respect of same.

The Complainant’s Union Representative outlined the background to this dispute. The Complainant has been employed by the Respondent since September 2000, most recently as a Clerical Officer at Grade 3. It is common case that the Complainant had an impeccable record and was a highly regarded employee. It is also accepted that the Complainant’s contract contains a mobility clause that requires him to be transferred between different sections depending upon operational needs. There was some argument around the circumstances of his transfer which are not relevant to the matters in issue. In October 2011, he was assigned to Unit A which at the time also consisted of a Grade 6, a Grade 5 (working mornings only) and another Grade 5 (on maternity leave and replaced for a period of 11 months during the currency of the employment). The Complainant was assigned to Unit A as a Grade 3 Clerical Officer. Notwithstanding an audit recommending same, there were no specific role descriptions for staff working within the Unit and the Complainant’s duties remained quite vague. As time went on, he was habitually assigned duties that were above and beyond what would normally be associated with a Clerical Officer at Grade 3. These duties included site visits, conducting research, having sole responsibility for collating/assessing data and writing up reports on his own, whilst he shared the responsibility for other reports with his colleagues. He also attended meetings, travelling and engaging with staff across the organisation either alone or as part of the team and undertook other important functions of the Unit including taking sole charge of the office during leave when required. This had become particularly necessary as the other Grade 5 who was on leave had only been replaced for a short period. During this time the Complainant was answerable to the Grade 6 who attended the hearing and gave cogent evidence confirming the extent of his duties for the period in question. He confirmed that owing to lack of staffing, he became increasingly reliant upon the Complainant whom he found most capable, and his duties had increased over time until they effectively became interchangeable with his more senior colleagues.

The Complainant initially sought to address the matter informally with the Respondent. Failing resolution, in June 2014, he raised a grievance via his Union and meetings were held with the Respondent on 16^th July 2014 and 23^rd September 2015 resulting in a letter dated 14^th October 2014 from the Respondent, confirming that it did not consider that he had a valid grievance and stating: “As indicated at the meeting, you are employed as a Clerical Officer and assigned duties appropriate to the grade. The duties of routine research and the submission of basic reports are a normal feature of clerical work throughout the organisation and the fact that grades more senior than your grade also carry out report writing as part of their role does not demonstrate that the role you are currently employed is incorrectly graded.” In December 2015, the Complainant was transferred back to a role that is indisputably at Grade 3 and I note that this is subject to a further internal grievance, the inference being that the latest transfer was in reaction to this claim. Having exhausted all local procedures, the Complainant referred this matter as a dispute to the WRC for resolution.

The Union Representative for the Complainant submitted that it is a fundamental principle that employees are paid for the work that they actually do. Whilst acknowledging that strict demarcation lines between roles, tasks or functions are impossible to set in absolute terms, in circumstances where there are agreed rates for various grades within an employment, the appropriate grade that should apply will be that which is established as objectively applying to any employee whose habitual duties fall within the scope and range of a particular grade. Standard job descriptions for the various grades were submitted in support of the Complainant’s submission that his work for the period in question was more closely associated with a Grade 5 as opposed to a Grade 3 Clerical Officer which was of a limited administrative or secretarial nature. The Union Representative further submitted that the Respondent was not restricted by the Public Service moratorium. He also relied upon the decision of the Labour Court in HSE West -v- A Worker AD1242 which upheld a finding that a worker should be upgraded to Social Work Team Leader, as being application of the appropriate rate for the job in the nature of an individual regrading rather than an increase in the existing rate, and as such the claim was not precluded by the Public Service Agreement 2010-2014.

Respondent’s Submission and Presentation:

The HR Manager for the Respondent set out its position, strongly refuting the Complainant’s contention that he should be paid at a higher grade level than Grade 3 for the period in question. He contended that staff working in Unit A are not specialists requiring possession of specific qualifications. The grading structure is generic and applies across all departments. In all his roles in the course of his employment with the Respondent, the Complainant has been employed as a generic Clerical Officer including during his period of employment in Unit A. He was not required to possess specialist qualifications and most of his assigned duties fell within the range of generic duties assigned to Clerical Officers in Unit A and other departments, being of an administrative nature. He stood over his position held at the various meetings and confirmed in writing to the Complainant, that duties of routine research and the submission of basic reports for review by more senior grades are a normal feature of clerical work throughout the organisation. The fact that grades more senior than his clerical officer grade also carry out writing as part of their roles does not on its own demonstrate that his clerical officer role in Unit A was incorrectly graded. The rigid demarcation that the Complainant seeks to rely upon is not a feature of the Respondent’s industrial relations environment in the clerical/administrative grades and staff acknowledge that ‘grey areas’ arise from time to time. Many staff utilise experience in these ‘grey areas’ to equip themselves with skills to apply for promotional opportunities. In any event, the Respondent was prohibited by the moratorium on appointments and promotions under the Public Service Agreement 2010-2014 and many staff had had to undertake duties above their grades during the period in question.

When questioned, the HR Manager was only prepared to accept that a small percentage of the Complainant’s work towards the latter end of his assignment in Unit A constituted work that could be considered above a Grade 3. He also accepted that grading is best determined not by the type of the work, i.e. report writing, but by the level of individual input and initiative required. He also agreed that a Grade 3 would normally report to a Grade 4 or 5 but in the Complainant’s case, he reported directly to a Grade 6. He also confirmed that it would not be practically possible to provide job descriptions for the various roles commensurate with the various grades within Unit A.

Findings and Conclusions:

Having heard from both Parties and considered all of the evidence in light of the guidance documents provided on the Staff Officer Grades scale, I am satisfied that:

(1) The Complainant was for a large part of his assignment in Unit A undertaking tasks that were interchangeable with a Grade 5, and indeed the other staff of a higher grade in Unit A. In so finding, I accept his evidence as corroborated by his former Line Manager that he was routinely undertaking duties including report writing that required his own input and initiative well above a Grade 3 level.

(2) Whilst acknowledging that the moratorium on appointments and promotions under the Public Service Agreement 2010-2014 was in place at the material time, no evidence was given on behalf of the Respondent as to why it precluded this particular claim. If there was such an issue, I am of the view that exceptions to the moratorium should have been examined when the issue was first raised.

(3) Whilst appreciating the resource issues faced by the Respondent for the period in question, I am of the view that the Complainant should have been properly and fairly compensated for his work in Unit A for the period in question, particularly in light of his impeccable work record to date.

(4) Compensation in the form of the difference in pay that he would have received as a Grade 4 for the period in question represents a fair and reasonable compromise in all the circumstances.

Recommendations:

Based on the aforesaid findings and conclusions, I recommend the following course of action in relation to Dispute Reference Number CA-00001155-001:

(1) That the Complainant should be compensated with the net difference between what he received as a Grade 3 Clerical Officer at the material time and what he would have been paid at a Grade 4 level for the full period of his employment in Unit A from October 2011 until December 2015 (after all lawful deductions) within 42 days of the date herewith or as agreed between the Parties.

(2) That the Complainant should not suffer any detriment in relation to his employment arising from bringing this grievance, and should be favourably considered for any promotional opportunities subject to the recruitment procedures governing any internal promotional competitions.

Dated:24^th August 2016