ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000195

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

Date of Adjudication Hearing: 29/02/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act, 1969, 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:

This claim refers to the alleged failure of the employer to implement equally it’s proposal made in 2007 to apply an independent evaluation of the appropriate grade for HR Managers in the Respondent’s PCCCS (community service), a proposal which was accepted by IMPACT Trade Union.  The Claim specifically refers to the subsequent alleged inconsistencies applied in relation to the incremental progression of eight managers at Grade VIII salary. The Claimant who is one of three of the eight managers who have complained they have been unfairly treated.

As the Claimant is one of three managers with an identical claim, the three Claimants and the Respondent agreed that the claim could be heard and responded to in unison. Notwithstanding, and in accordance with the fact that the claims are made separately, a separate report is issued for each Claimant.

The Claimant is employed as HR manager within the North Eastern Region of the Respondent. The Claimant contends that a proposal was made in 2006 by the then National HR Director that the Claimant would be appointed as a Grade VIII with an understanding that an evaluation of the appropriate grade for the job would be completed, and where the National HR Director at that time affirmed that the appropriate grade for the role was Grade VIII. In July 2007 the Claimant was appointed to Grade VIII along with eight other managers. However incremental progression was not applied to him since his appointment, whereas it was applied to five of the other managers appointed. The Claimant argued that this decision amounts to a substantial financial loss to him (circa €65,656).

The Claimant argued that over the years he attempted to address the issue with the Respondent and on 23 September 2015 he received a formal response which rejected his claim. As this was the first formal response from the Respondent the Claimant progressed the claim to the WRC at that stage.

The Claimant also argued that a review of the organisation’s IT personnel record system would show that he was de facto appointed to a Grade VIII position from 2007. This argument is based on the fact that the IT system shows a specific appointment number against his position, and that number had to be created as there was no acting up position to fill, and therefore he was promoted to a new appointment. In effect the Claimant relies on this record as demonstrating that a new substantive Grade VIII position was created for him. The Claimant further argued the appointment would have been recorded differently if he was only in an acting role. The Claimant contended that the other five HR managers were not only treated as being appointed to a substantive Grade VIII position, but they were also paid incremental payments from their appointment in July 2007.  This he believes further demonstrates that it was not an acting role or an acting allowance would have been applied in accordance with Circular letter 10/71 (and a subsequent acting up policy issued in January 2010).

The Claimant also argued that a letter from the National Director of HR on 10 July 2006 stated that "one national approach is required".  Therefore he contended that all eight HR managers should have been treated equally, but this did not happen. The Claimant did not qualify for any incremental payments until 2013, unlike the other five managers who were paid upon their appointment in 2007.  Furthermore the Claimant contended that section 2.8 of the employer’s agreement (HAS) of the 2010 Public Service Agreements (PSA) states that all previous agreements, collective are otherwise, or recommendations by industrial relations bodies remain intact. On that basis, irrespective of any further industrial relations agreements that applied since his appointment in 2007, the Claimant argued that he has been denied his incremental entitlements, an entitlement that was afforded to five other HR managers who were appointed at the same time as him.

The Claimant also contended that the Respondent had in fact paid incremental payments to other staff who were in acting up positions in the North East Area during the time, and he presented evidence from the payroll manager which in general confirmed this to be the case. It was therefore argued that there were irregularities within the area the Claimant worked.

The Claimant referred to Labour Court decision AD1344 which was issued on 13^th May 2013 where it found that the HSE has more frequently applied, than not applied, incremental credit to staff acting in grade 8 posts. The reasons for granting or withholding incremental credit appear to be quite random and inconsistent.

As the HSE, in the majority of cases, has in the past and continues at present to award incremental credit to staff acting in grade 8 posts, the Court finds no grounds for the withholding of it in this case. Accordingly the Court decides that the Worker’s claim has merit and that he should, in equity, be moved to the 5^th point of the relevant scale…” The Claimant argued his case had similar merits and therefore should be treated in the same manner as the Labour Court decision, and furthermore the Respondent failed to rectify this matter following the Labour Court decision.

Subsequently, following a national agreement in 2013, the Claimant was advised that he was formally appointed to the Grade VIII role and only from that time would his increments apply. He advised the Respondent offered at that time to pay him at the top of the Grade VIII scale, backdated to October 2013 which is the date for those regularised under circular letter 17/2013, but he has not accepted this believing his claim is not covered by circular letter 17/2013 and as it goes back to 2007 should be recognised in its own right.

As such the Claimant is seeking recovery of his remuneration in relation to the increments he believes he should have received since his appointment to the Grade VIII role. This claim therefore amounts to €65,656.

Respondent’s Submission and Presentation:

The Respondent acknowledged there was an agreement in 2007 regarding eight HR Officers who worked in PCCCS but were deployed across a number of regional areas of its business. The Respondent also acknowledged that there was a need to regularise the situation as HR Officers were operating at different grades within the system at the time. The Respondent confirmed that in July 2007, in order to redress the situation, the then National Director of HR issued a letter recommending the HR managers were to be remunerated at Grade VIII as an interim, backdating this from January 2005, and this was to be followed by an evaluation of the most appropriate grade for the role. The Respondent confirmed that the Claimant was remunerated in an acting capacity from January 2005, where he remained as an acting Grade VIII until July 2013 when, in accordance with circular letter 017/2013, his appointment to a substantive role was made on a cost neutral basis. In accordance with the circular letter the Claimant was only then entitled to accrue increments. 

The Respondent acknowledged that due to a moratorium that was imposed in 2007 as a result of the changing economic circumstances, the evaluation process was suppressed/suspended and ultimately replaced by the national agreements that emerged as a result of the Haddington Road and associated agreements. In the meantime, and from 2007, any promotions where prohibited and were only permitted on a break even basis. In this regard all vacancies were to be filled in accordance with Circular letter 006/2008 and within the context of the employment control framework. This impacted on long-term acting arrangements which were in place at the time, and consequently impacted on the Claimant’s position where it was not possible to substantiate his grade.  He therefore remained in an acting Grade VIII until 2013.

The Respondent further explained that the claimant, along with two other HR Managers related to this claim, worked in the North East region and in this region incremental credits were not applied for acting up arrangements. He stated this was the required practice at the time and this was consistent with the circular letters and national instructions that existed.   Therefore increments did not apply for acting positions, and in accordance with the agreed procedures the Claimant has no entitlement for incremental payments.  The Respondent acknowledged that five other HR managers in different areas who were also appointed to the acting up Grade VIII on an interim basis were awarded increments but contended they were not in the Claimant’s area and as they were in other areas they were not under the Respondent’s area of accountability.  The Respondent further contended the payment of the increments to the five other managers was incorrectly applied, and therefore it was not a basis for the Claimant to justify his claim.  As this was in a different area the decision was made by a different area HR manager, and this did not entitle the Claimant to the same treatment, particularly as the Respondent contended this treatment was contrary to the correct application of the regulations that applied at the time.

The Respondent argued that the irregularities with long term acting arrangements across the different areas where subsequently addressed in a national collective agreement under the HSA talks, and following this collective agreement circulator letter HR 17/2013 was issued. At this time and consistent with the new circular letter the Claimant was appointed to a substantive Grade VIII, where he qualified for increments from that point.  The Respondent contended this was consistent to how the agreed procedures were applied in the North East region.

The Respondent also advised that the numbers referred to on the IT system and where the Claimant was relying upon to demonstrate he was not in an acting position, were in fact generated specifically to address the interim position to appoint the Complaint to an acting Grade VIII in order to facilitate the agreement with IMPACT. As no Grade VIII vacancy actually existed to appoint the Claimant into, the system had to generate a new number to allow him be paid at Grade VIII level. It was therefore incorrect for the Claimant to rely on a number on the IT system as being confirmation of his substantive appointment to Grade VIII and where increment payments should have been applied. In this regard the Claimant was put into and interim acting Grade VIII position until the evaluation process was completed. However due to the employment control frameworks and other related issues this evaluation was initially suspended and subsequently superseded by the national agreements that emerged in 2013.  Effectively the Claimant remained in an acting position until the matter was regularised as part of the national agreements. As such the Respondent argued that the Claimant was never in a substantive Grade VIII position and therefore the application of increments to his position could not have applied. They only applied from his appointment to a substantive role from 2013.

In further response to the Claimant’s reference to LRC AD1344, the Respondent referred to a Labour Court Recommendation LCR20814 issued on 29^th July 2014 (regarding the payment of incremental credits) which upheld that the Haddington Road Agreement had addressed the regularisation of staff in long term acting positions, and where as a consequence the Labour Court cannot now reopen that issue. Accordingly the Labour Court found that the Union’s claim was comprehended and the Respondent argued that this situation applied to the Claimant’s claim. 

As such the Respondent argued that circular letter 17/2013 which issued following the national agreements, addressed the need to regularise acting up positions and as the Labour Court has supported the rejection of any subsequent claims in relation to the payment regarding acting up position, the Claimant’s claim must fail. The Respondent also contended that as it consistently applied the regulations regarding the payment of increments in its area for some 250 other members of staff where the upholding of the Claimant’s claim would impact on these staff members and potentially open the flood gates generating some 2,000 claims nationally.

On that basis the Respondent contended that the Claimant was not entitled to the incremental payments and therefore it was not in a position to sanction same.

Again, in response to the fact that five other HR managers in different areas had been awarded their increments from their acting appointment, the Respondent argued that this was an incorrect application of the agreements and regulations that existed at the time, and further advised those managers were working in a different area and that it was not accountable for those decisions. In any event the Respondent argued that such matters had been regularised with circular letter 17/2013 which was underpinned following a collective agreement between the Respondent and the trade union.

Decision:

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.

In this regard, the claim is raised under the Industrial relations Act 1969, and in accordance with Section 13 of that Act I am entitled to investigate the matter and make a recommendation to the parties setting forth my opinion on the merits of the dispute.

The decisions for adjudication is whether the Claimant was de facto in a substantive Grade VIII position and therefore entitled to increment payments; or whether he was entitled to receive incremental payments from his appointment to acting Grade VIII on the basis other HR managers and staff had received increment payments when in acting up positions. I must also consider the  precedents set by two separate Labour Court decisions which the Claimant is relying upon on the one hand and which the Respondent is relying upon on the other hand.

Conclusions and Findings

Based on the evidence presented to the hearing, the Adjudication is satisfied that the Claimant was appointed in an acting capacity to Grade VIII with the genuine intention of the Respondent to conduct an evaluation of the appropriate grade for the role. It is further acknowledged that based on the correspondence received by the Claimant at the time that he had a reasonable expectation that he would be appointed to a substantive Grade VIII position following the planned evaluation.

However due to the unprecedented situation that emerged in relation to the public finances, the Respondent did not progress with the evaluation and it was subsequently superseded by events and replaced by national collective agreements through the Haddington Road and related processes. What emerged in 2013 was a collective agreement between the Respondent and the Trade Union which regularised the inconsistent application of incremental payments for acting appointments, and where this agreement has subsequently been upheld by the Labour Court with regard to similar claims. It is further noted that the Trade Union has not pursued the proposed evaluation exercise or related matters, and the Claimant was substantiated to Grade VIII following the implementation of circular letter 17/2013.  Furthermore the Respondent offered to pay the Claimant at the top of the Grade VIII pay scale when making the position permanent in 2013, and it enacted his appointment as soon as possible.

Whilst acknowledging there were inconsistencies being applied by the Respondent in relation to incremental payments for staff in acting positions, and where the Claimant was treated less favourably to some other staff in how the Respondent applied incremental payments, it is however recognised that the Respondent correctly applied the incremental payment regulations to the Claimant. Furthermore, the Adjudication is also conscious of the Labour Court Recommendation LCR20814 which has found that claims for incremental payments are comprehended by the agreement on the regularisation of staff in long term acting positions that was concluded as part of the Haddington Road Agreement and cannot be reopened before this Court. It is clear circular letter 17/2013 emerged as a consequence of the Haddington Road and related agreements.

Accordingly I do not recommend concession of the Claimant’s claim. I recommend that the Respondent honour its offer to pay the Claimant at the top of the Grade VIII pay scale from his permanent appointment to Grade VIII in 2013.

Dated:   29 March 2016