ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001029

Dispute for Resolution:

Date of Adjudication Hearing: 30/03/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 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.

Complainant’s Submission and Presentation:

The Respondent is a non-commercial semi-state body which underwent reorganisation in 2012. The complainant was appointed following a competitive process to a senior position which included membership of the Senior Management Team. While the post carried significant additional responsibility it did not carry any additional salary nor was she re-graded and colleagues reported to her who were on the same grade as she was.

In 2015 following an industrial dispute in the organisation the Labour Court issue a recommendation which, among other things, directed that a member of the organisation’s staff could only be managed by a person on a higher grade.

This had seriously adverse consequences for the claimant as previously a number of her colleagues who were on the same grade as her reported to her.

The respondent told her in May 2015 that she could not continue in her post and would no longer be a member of the Senior Management Team. She engaged with her employer on the matter seeking a return to her previous status and role.

An independent investigator was appointed to examine her grievance and in broad terms he agreed that she had a grievance; a conclusion accepted by her employer.

A mediation process was inconclusive.

She says she had effectively been demoted, that her contract of employment has been broken and that her treatment has been humiliating. She says that she will take action for breach of contract in the courts if the matter is not resolved in the industrial relations process

Respondent’s Submission and Presentation:

The respondent said it has acted on foot of the collective agreement it reached with the recognised trade union. It did so on foot of the recommendation of the Labour Court and under the shadow of a threat of industrial action.

It sought to resolve the matter by seeking approval from its parent department to upgrade the claimant’s position but this was refused under the public service moratorium. The respondent was ‘categorically instructed’ that there would be no promotions or regradings.

Therefore they are caught between the requirements of the collective agreement, the Labour Court decision and the position of the Department.

It says that the union was fully aware of the consequences of enforcing the LCR on the claimant (and one other who was not a party to the referral)

Conclusions and Findings

The Labour Court described the matter before it in LCR 20854 as ‘Organisational structure and refusal to recognise parity with the education sector’. Its recommendation addressed two issues; Leave entitlement, which does not concern this case and ‘Grading/reporting structure’.

In respect of the latter it recommended that

‘staff be assigned work associated with their pay grade and be managed within a structure that respects those grades’

While its recommendation was referred to as in some way contributing to the problem, fixing the Labour Court with any responsibility for the current situation would, on the basis of these words be entirely unjustified.

Whether it was aware of the possible downstream consequences of the decision is not clear and for the purposes of this decision I am assuming it was not, or, even if it had been it was entitled to consider that these were matters which would be dealt with through negotiations between the parties at the implementation stage in the normal way.

That is the point at which the problem appears to manifest itself.

Following publication of the LCR in October 2014 the ensuing discussions represented the best forum in which the current claimant’s problem could have been addressed. It could reasonably have been foreseen that the alternative of a request for approval for promotional positions would meet the fate it did in fact meet.

Evidence was given that the union was aware that one consequence of its insistence on the interpretation it placed on LCR 20854 would be the outcome for the claimant that is the subject of this adjudication. That a trade union, (of which she is actually a member) would press on in the light of this knowledge is a source of some surprise, to put it no more strongly (while acknowledging that the union was not present at the hearing to give its version of events).

The respondent claimed in evidence that having to accept this outcome was ‘the lesser of two evils’. While this may have been true for the respondent, it most decidedly was not for the claimant for whom it was the very opposite.

The objective that no-one should report to a person in the same grade is quite logical in the normal hierarchical grading structure, but the claimant paid a heavy price for its introduction in this organisation and her rights appeared to be regarded as being of no consequence.

She had a position established over the previous three years and she had a right to retain her then role, whatever was necessary to achieve it, or have it varied only with her consent, or be appropriately compensated in some way. Valuable as collective bargaining is, those engaged in it have some responsibility to protect co-workers (and, in the case of the trade union one would especially think their own members) from consequences on the magnitude exhibited here.

I conclude that there has been a very serious breach of the claimant’s employment rights and that she has the right to be restored to her position without delay.

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.

I recommend that sanction be immediately sought from the parent department, and should be granted, even on an exceptional basis for this employment for the regrading necessary to do so, to remedy the serious injustice to the claimant and to implement this recommendation.

As noted above the claimant said she had ‘effectively been demoted, that her contract of employment has been broken and that her treatment has been humiliating’.

I agree with this description of her treatment and so I further recommend that she be paid €10,000 compensation for the breach of her rights in the matter and the general unfairness of the treatment to which she has been subjected. This payment is for the breach of her rights and is not in the nature of pay, and therefore should not be subject to tax or other state deductions.

Dated:  16/06/2016