ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000409
Dispute for Resolution:
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Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969. |
CA-00000597-001 |
3rd November 2015 |
Date of Adjudication Hearing: 9th March 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015, and/or 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.
The Complainant is employed by the Respondent as a Senior Administrative Officer and she was in dispute with the Respondent in relation to her pay grade over a period of time.
Summary of Complainant’s Submissions:
Since 2002 I have been working in hospital management positions and graded incorrectly. In June 2014 there was an agreement reached with senior management within the Respondent, which was never implemented resulting in my incurring of substantial financial loss. |
The Complainant said that initially the dispute related to the failure of the Respondent to implement an Agreement reached in 2014 between her and the Respondent, the Complainant said that while this Agreement has been implemented in February 2016, the remainder of the claim relates to the inappropriate grading of her position within the Acute Hospital Services in a named Area since 2002 and the failure of the Respondent to pay her what was appropriate to her position.
The Complainant said she commenced employment in the named Area on 15th August 1995. In 2002 she took up the post of Bed Manager and this was at that time graded at Grade 6. In 2002 an external review was commissioned, the Capita Review, which examined Bed Management grades and structures nationally. On 20th February 2007, the outcome of that Review was communicated to each Hospital Network Manager for implementation by HR Circular 004/2007, which instructed management to upgrade substantive post holders in line with the hospital category. At that time the named Area had been inappropriately categorised as a Category C Hospital, when it should have been Category B, this was due to an error in the submission relating to hospital activity and that inappropriate grading resulted in the Complainant working and being paid at a Grade 6 instead of Grade 7 up until 2011
The Complainant said that during the period from 2007 to 2011, while she inappropriately remained on Grade 6, she was reassigned in December 2016 by the Network Manager into a senior management position in the Hospital. The General Manager post had been vacated in exceptional circumstances and there was an immediate requirement to support the safety and governance of the Service, and the Complainant was required to undertake the role of Assistant to the General Manager, which is recognised nationally as a Grade 8. The Complainant continued in that position with the newly appointed General Manager and subsequent general managers until February 2016.
The Complainant said that during this period she was working on significant strategic changes with the Organisation including the Transformation Programmed 3a, but she was not being acknowledged or paid at the appropriate management grade.
In 2010 the Complainant, along with another senior manager undertook a major project to address one of the most significant risks on the Hospital Corporate Risk Register, which she said did not fall under her responsibility or role, but was assigned to her and her colleague as they were the most skilled managers to carry out the task. This was in addition to her normal work and she said it is an example of why she believed her skillset was being exploited for the greater need of the organisation, but her position remained incorrectly graded.
The Complainant said she was issued with a Grade 7 contract of employment in January 2011 for her substantive Bed Management Post. The Complainant said this contract should have been back- dated to 2007 when HR Circular 004/2007 was received. She said that this was confirmed in email correspondence from a named member of HR staff on 15th March 2011. The Complainant said that at this point she signed the Grade 7 contract as she was already incurring significant loss of earnings.
The Complainant said that as part of her Assistant to the General Manager role she deputised for the General Manager on a regular basis and provided regular unpaid on-call service for the past 9 years. Throughout that time she was paid as a Grade 6 until February 2010 and then as a Grade 7 until October 2013. The Complainant said the Assistant General Manager was and still is acknowledged as a Grade 8 position.
The Complainant said it was acknowledged that she was working 2 grades and then 1 grade below that at which her position should be graded at; she said the General Manager informed her that due to the employment control measures it would be impossible to get her position graded as a Grade 8. The Complainant said that however she was aware that throughout the Organisation there were not only Grade 8 positions being sanctioned and approved but also those at General Manager Grade.
In 2010 a review was undertaken on the roles and responsibilities within the senior management team to strengthen the hospital governance further. The Complainant said due to her skillset, knowledge and expertise that some roles from other managers were transferred under her responsibility as Clinical Business Manager. The Complainant said she was required to continue with her roles and responsibility as Assistant General Manager in conjunction with the Clinical Business Manager role.
The Complaint said that the General Manager submitted a business case to the Area Manager to support the regularisation and appropriate grading of the Assistant General Manager post, this was approved and submitted to HR, resulting in a Grade 8 General Manager contract of employment being issued to her in October 2014, 1st Point on the Scale and backdated to 1st October 2013. The Complainant said that this contract did not take account of her 7 years service at a Grade 7 level.
The Complainant said that in summary for 11 years she has been paid at either one or two grades below what was recognised as the appropriate grade for the positions held and she said that this is resulted in significant financial loss of earnings to her, which she calculated to be €88,627.
The General Manager met with the Deputy National Director of Acute Hospitals to discuss a means of rectifying the anomaly in relation to her pay/grading/point on the salary scale. This submission was approved and signed off on 26th June 2014 for implementation. The General Manager communicated this to the relevant departments for immediate implementation; however this process, approved by the Deputy National Director of Acute Hospitals was not implemented.
The Complainant said this was a devastating outcome for her. The Complainant said she still remains in a position where she feels she was being taken for granted and exploited by the Respondent.
The Complainant that for a period of 13 years she has been graded incorrectly, which resulted in her being paid at either one or two grades below what was the recognised appropriate grade for the positions held and this has resulted in a very significant loss of earnings. The Complainant said that she feels completely undervalued, disrespected and mistreated as an employee as she has a proven track record. The Complainant said that throughout the period involved she was aware of other senior managers being upgraded throughout the another named Region at Grade 8 and General Manager Level, outside of the Respondent’s policies and the Haddington Road Agreement.
The Complainant sought a finding and decision in her favour, that she be paid the loss of earning incurred and she further sought that there be a punitive sanction against the Respondent for the manner in which they have treated her in this matter.
Summary of Respondent’s Submissions:
The Respondent said that the Complainant is currently employed as a General Manager in the named Area and she claims that while working in hospital management positions since 2002, she was incorrectly graded. The Complainant further contends that she has suffered financial loss as a result of the Respondent’s alleged failure to implement an agreement reached with senior management in June 2014.
The Respondent said they are conscious that there is a subsisting relationship of employer and employer that will continue after this hearing, with this in mind the Respondent had endeavoured to present the facts of this case neutrally and with a view to causing the least damage possible to working relationships.
The Respondent said the Agreement of June 2014 has been implemented in full. Management were of the opinion that this was the full extent of the claim by the Complainant and assumed that the implementation of the Agreement would have resulted in a withdrawal of the claim from the WRC. The Respondent said the Complainant indicated that her claim extends beyond that, although management are not on notice of the details.
The Respondent said that in this submission they deal only with the claim described in the Complaint Form and the attached additional information and they reserved their position to make further oral and written submissions should the Complainant advance any further complaint.
The Respondent said the Complainant commenced employment with them in the named Area as a Staff Nurse from March to June, when she resigned and went abroad. She resumed employment with them in February 1991 and she was promoted to the position of Acting Surgical Ward Sister on 30th June 1998. The Complainant successful applied for the post of Bed Manager, Grade 5 and was appointed to that post on 12th December 2002.
In May 2002, Capita Consulting was commissioned by the Respondent and the their Nursing Unions to undertake a comprehensive review of the bed management function on a national basis and their Final Report was issued on 27th January 2003.
On 29th January 2007, the then Hospital Network Manager, informed that the Complainant had agreed to take up the additional role of assisting the Acting General Manager and to continue that job when the new General Manager was appointed. In return for performing this work the Complainant was to be paid additional 10 hours overtime per week.
The Recommendations of the Capita Report were approved and sanctioned to be implemented by way of an enabling Circular 004/2007. The Head of Bed Management Function was categorised by set criteria into Hospital A, B, or C. At the time the Hospital in which the Complainant worked was categorised as a Category C Hospital and as the head of bed management was already graded at this level the Report had no effect on the grading. Management at that Hospital challenged the Report’s findings in terms of the classification of the Hospital at Category C. Subsequently a series of contacts took place in an effort to redress the assignment of C classification and after a considerable time approval was received to reclassify it as a Category B Hospital.
In that regard the position of Head of Bed Management was subsequently upgraded from a Grade 6 to a Grade 7and the Complainant was duly appointed to the position of Bed Manager, Grade 7 and this was backdated to 12th February 2010
In 2013 the Complainant sought to have her post regularised to a Senior Administrative Officer, Grade 8 under the regularisation process under HR Circular 17/2013. The Complainant was deemed to have satisfied the criteria contained in the Circular and she was regularised to a Senior Administrative Officer, Grade 8 with effect from October 2013. Upon regularisation the Complainant was appointed to the nearest point on the appropriate salary scale but not below existing pay, this being the 1st point on the salary scale, €64,812.
In December 2015, the Interim Group CEO of the Hospital Group wrote to the Finance Manager at the Hospital the Complainant worked at to inform that the Complainant was to be paid at the 7th point (the maximum) of the Grade 8 scale, €74,551 with effect from 30th June 2014, and this was done with the retrospection amounting to approx. €15,000. This was in relation to the Agreement that was reached with the Complainant in June 2014.
The Respondent said the claim submitted is the alleged failure to implement the Agreement reached in June 2014; but that Agreement has been implemented in full with all arrears of pay made in full.
The Respondent said the Complaint Form also states that the Complainant was incorrectly graded since 2002. This claim is refuted by the Respondent.
The Respondent said that there was an issue with the upgrade from Grade 6 to Grade 7, Head of Bed Management function at the Hospital, but that is explained by the submission of incorrect data to Capita , based on the initial data submitted it classed as a Category C Hospital. On receipt of accurate data the grade of Head of Bed Management was changed accordingly. This took a considerable amount of time and was effectively caught up with the introduction of the Public Service Moratorium on recruitment and promotion. The upgrade of the Head of Bed Management in the named Area was one of the few upgrades completed during the Moratorium. The implementing Circular to introduce the Recommendations of the Capita Report clearly graded the named Area at Grade 6 Head of Bed Management. The Respondent said that to effect any change to that enabling Circular required approval at the highest level. The Respondent said it may well be argued that the amended data was submitted prior to the Final Report, but the facts show that the data relied on by Capita resulted in the Head of Bed Management Function being graded at Grade 6.
The Respondent said that the Complainant was paid 10 hours overtime pay every week from December 2006 and they said that this amounted to significant additional pay that more than compensated the Complainant for the added responsibilities she assumed where she agreed to assist the then Acting General Manager and continued that with the appointment of the new General Manager. The Respondent said it should be noted that many of their staff took on additional roles and responsibilities for a number of years and received no recompense for this. It was recognised for some people where they acted up and could show that they filled a designated vacancy; they were regularised under Circular 17/2013.
The Respondent said the Complainant may argue that the additional role that she agreed to undertake was commensurate with that of a Senior Administrative Officer, Grade 8. The Respondent said that without in any way undermining the value and commitment of the Complainant to the Hospital it is necessary to point out that no Grade 8 existed in the Hospital at the time and in that regard any claim that the work was at that level is arguable.
The Respondent said the Agreement reached in 2014, was in complete breach of the enabling Circular 17/2013 from which authority came to appoint the Complainant from October 2013. Circular 17/2013 directs that staff appointed under that Circular should be appointed on a cost neutral basis, i.e. the nearest point of the higher salary. Incremental credit was not provided for in any sense and the Respondent has appointed over 1,000 staff on foot of the Circular. The Respondent said the Agreement with the Complainant in June 2014 was so far outside the terms of the Circular that a number of managers in the system have challenged the Agreement. The Respondent said that implementation of the Agreement was in the context of Circular 17/2013, delayed given the expected fallout of the decision. The Agreement was reflected in a revised contract of employment, this was signed by the Complainant and then signed by the General Manager and Assistant Director of Acute Hospital Services; the Respondent said this act was ultra vires their role and authority as revised contracts are in the main signed by HR.
The Respondent said that the Complainant was asked to take the lead for an urgent clinical review in November 2014. The then General Manager approved 12 hours overtime pay per week for this role. The original arrangement of 10 hours overtime continued up until July 15. The Respondent said the payment of overtime more than compensated the Complainant for the additional work and responsibility given that the 12 hours a week equated to circa €500 per week. The Respondent said it could be argued that the overtime should have ceased when the Complainant was regularised as a Grade 8 in October 2013. Not only that but during the time the Complainant was in the role of Assistant to the General Manager another employee acted up into the role of Bed Manager. The Respondent said that if one adds the monetary value of 10 hours overtime to the substantive Grade 7 Salary the Complainant was is essence paid more than a Grade 8, which was the basis of her claim for some time up until regularisation.
The Respondent said the Complainant has been treated more generously than many of her colleagues. An analysis of the Complainant’s personnel file suggests that the Complainant did not have any platform to raise a claim until the grading of the Bed Manager post that was reviewed with the Capita Report and the enabling Circular that was sanctioned in February 2007. The grading of the post in the named Area was challenged on the basis of incorrect data and after some time the post was regraded to Grade 8, despite the moratorium on recruitment and promotion at the time. When she took up the Assistant to the General Manager role she was paid 10 hours per week for this additional work and that continued until September 2014. In November 2014, when she took on the lead role for the clinical audit she was paid additional 12 hours overtime per week up until 3rd July 2015. Although not acting in a designated Grade 8 post was regularised under Circular 17/2013 if that Circular was applied correctly the Complainant would not have been appointed as no identifiable Grade 8 vacancy was in place; there was no predecessor in the role.
Subsequently, even though the appointment was made at the correct point of the salary scale, the Complainant challenged the point on the salary scale, which culminated in the interim CEO making a decision to appoint her to the maximum of the Grade 8; an increase in salary of €9,739 per annum, which is in breach of the governing circular.
The Respondent said that in all of the above circumstances they do not see any validity to the Complainant’s claim. She was treated more than reasonably and if minded to, the Respondent could insist that the last instruction by the interim CEO was ultra vires and should be rescinded.
Based on the foregoing submissions the Respondent sought findings and a decision that the claims were not well founded and should be rejected and that they had behaved reasonably in the matter.
Findings and Recommendation:
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.
Section 13(3) of the Industrial Relations Act 1969 requires that I make a Recommendation in relation to the trade dispute in accordance with the relevant provisions of section 13(3) of that Act.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
I note that the Complainant is referring to and/or claiming in relation to alleged matters dating back to 2002, a period of 13 years. This is a very long period by any standard and I have strong reservations about the appropriateness or fairness to the Respondent of dealing with matters at such a remove. There is a general obligation on parties to deal with matters in a timely fashion and this applies equally to the Complainant.
The Complainant stated that she felt as an employee completely undervalued, disrespected and mistreated her and she further states that she was treated by the Employer in an inappropriate and disrespectful manner. I can see no evidence why the Complainant would feel this way and I certainly see no evidence that the Employer disrespected, mistreated, undervalued or treated the Complainant in an inappropriate and disrespectful manner in these matters. On the contrary the Employer did everything in their power to ensure that the Complainant was treated fairly and was afforded recognition for additional responsibilities taken on by her, despite the extreme constraints placed on them by the severe recession, the public sector moratorium on recruitment and promotion, FEMPI and national public sector agreements. Many of the Complainant’s colleagues also took on additional responsibilities without any of the recognition or additional payments afforded to her.
The Complainant takes no account of and gives no credit to the Respondent for the fact that she was paid 10 hours overtime pay each week from December 2006 and from November 2014 this was increased to 12 hours overtime pay per week, which equates with €500 per week. This is a considerable amount of additional pay by any standard and it is difficult to disagree with the submissions of the Respondent that this compensated her for any additional responsibilities undertaken by her.
It is common cause between the parties that the fact that the delay in the upgrade from Grade 6 to Grade 7 was caused by the submission of incorrect data to the Capita Review and the correction of this did take a considerable period of time to correct and got caught in the Public Sector Moratorium on recruitment and promotion. However I note the eventual upgrade of the Complainant was one of the very few allowed during the Moratorium. This suggests that the Respondent was doing the very best that could be done for the Complainant in that respect.
I note that the Agreement made with the Complainant and the interim CEO in June 2014 to appoint her to the maximum point of the Grade 8, Salary Scale afforded her an increase of €9,739 per annum and gave her arrears of €74,551. Again this is a very substantial pay increase and lump sum by any standards and it appears it may even be in breach of the governing Circular 17/2013. But again the Complainant gives no credit to the Respondent for the payment of this generous in all the circumstances increase and lump sum by the Respondent and I accept that as submitted by the Respondent they had valid reason to believe that this would have settled all of the Complainant’s complaints.
I note the Complainant confirms that she, in the full knowledge of the meaning and contents of that document and the covering document, on 26th June 2014, signed the Grade 7 contract of employment. Based on her knowingly agreeing to and signing that document I cannot accept that it is appropriate for her to subsequently claim arrears in that respect.
Based on the above and in all the circumstances I am satisfied that the Respondent did all possible in the circumstances to afford recognition to the Respondent for additional responsibilities assumed by her and I am satisfied that she was treated as favourably as possible in the circumstances and that she was treated more favourably than many if not most of her colleagues who also took on additional responsibilities.
In all the circumstances I do not see merit in the claim under Section 13 (3) of the Industrial Relations Act and it is rejected by me.
Dated: 25/05/2016