ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001437

Complaint for Resolution:

Venue:

Ardboyne Hotel, Navan, Co. Meath.

Date of Adjudication Hearing: 17/05/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

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

Background

The Complainant commenced employment with the respondent on the 17^th of October 1979. She currently works in the employee relations department. She alleges that there is an unresolved issue of the non-granting of incremental progression to her while acting in a higher capacity since 2005. This has resulted in the loss of significant earnings over a ten year period. She also alleges that the appointment to a grade 8 position has been to the minimum point on the scale. She is of the opinion that the Respondent has been remiss of its management of her employment contract and has ignored her reasonable expectation of being afforded the opportunity to compete for a grade 8 position after a reasonable period of time. She filed a complaint with the Workplace Relations Commission on the 8^th of January 2016, under Section 13 of the Industrial Relations Act, 1946.

Complainant’s Submission:

The following is a summary of the Complainant’s submission;

That there is an unresolved issue of the non-granting of incremental progression to her while acting in a higher capacity since 2005. That the inaction of the HR Department to resolve the matter, has led to significant loss of earnings over a ten year period and as a consequence her formal appointment to a Grade 8 position in 2013 has been on a minimum point on the scale.

She further contends that she has been disadvantaged by the Respondent, by having and implementing on an ad hoc basis, a different interpretation of the Respondent Acting-up policy within the broader organisation.

She requested that as a permanent and pensionable officer that her contracts of employment since 2005 be reviewed with a view to granting incremental progression each year and furthermore that her formal appointment to a Grade 8 position is backdated to 2008 to coincide with

She further contends that it is procrastination on behalf of the HR function in the former organisation that has led to this situation.

Following on from her last application for review in September 2015, she was advised by the Respondent, to refer her case to the appeals process initiated in a response to the fall-out of circular 17/2013.

She did this and had been advised that her appeal at the hearing was not successful as it does not conform to the criteria in the HR circular.

She is of the opinion that the Respondent has been remiss in its management of her employment contract, has failed in its responsibility to address the issue of her incremental progression and that she has not been treated in a fair and equitable manner. She has raised the matter both formally and informally on a number of occasions. She has been extremely reluctant to take a formal complaint against the Respondent but she has been left no option. That she has a reasonable expectation since 2005 that her claim would eventually be dealt with in a fair and equitable manner in line with good administrative decision making principles and good industrial relations practise. This has not happened and she had no choice but to file a complaint with the workplace relations commission.

Respondent’s Submission:

The following is a summary;

The Respondent is satisfied that the Complainant was treated in accordance with the provisions of the HSE HR circular 17/13 and was not treated less favourable than any other employee in similar circumstances. The Complainant was paid an acting allowance in the same manner as any other employee of the region at the time and was treated in accordance with standard practise.

HSE HR circular 17/13 was a reflection of a collective agreement between management and staff representative bodies, and any deviation from the terms of that agreement would have serious consequences both in terms of having the potential to dismantle this agreement but also for the integrity of any future agreements. Indeed the Labour Court has in its recommendations stated; “that as a collective agreement that the measures contained within it must be applied consistently.”

In accordance with HR circular 17/2013 the Complainant was appointed on a cost-neutral basis to a permanent Grade 8 position and was placed on the first point of the Grade 8, C Salary scale. The Complainant was issued with a permanent contract of employment which clearly documented the terms and conditions of employment including the point of scale being applied. The Complainant signed the contract of employment accepting the terms of the contract. The Respondent would seek to have the claim rejected and the veracity of the collective agreement on regularisation endorsed by the adjudicator.  

Findings

In July 2015 an appeal procedure regarding the provisions of circular 17/2017 was put in place. The procedure was agreed following a referral by the Health Sector Unions to the WJC. In accordance with the Croke Parke/ Haddington Road Dispute Resolution Process an agreed arbitrator was appointed to hear cases where staff contended that the provisions of circular 17/2013 should have applied to them. Cases that had advanced to adjudication – i.e. Rights Commissioner/ Labour Court would be allowed to proceed, all other appeals were to be dealt with through the appeal procedure. The outcome of the adjudication process by the arbitrator would be binding to the parties.

The complainant appealed her case to the arbitrator stating that the provisions of circular 17/2013 should apply to her. An appeal hearing took place on the 7^th of December 2015. She was advised by the arbitrator on the 14^th of December 2015 that her appeal was not successful as it did not conform to the criteria in the HR circular. She was advised that his decision is final and binding in determining the appeal and the decision in the matter of her appeal is therefore conclusive.

On the 8^th of January 2016 the Complainant decided to refer her complaint to the Workplace Relations Commission. However she is precluded from doing this as she utilised the appeals procedure regarding the provisions of circular 17/2013 which was carried out by an independent arbitrator and his decision is final.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under Section 13 of the Industrial Relations Act, 1946 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the evidence presented by both parties at the hearing I find this complaint is not well founded as it has already been adjudicated upon by an independent arbitrator in line with the appeal procedure regarding the provisions of circular 17/2013.

Dated: 22^nd July 2016