ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003134

Dispute for Resolution:

Date of Adjudication Hearing: 9th August 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

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

Background:                                                                                                                                                  

The Trade Union was in dispute with the Respondent in relation to the Complainant’s pay grade.

Summary of Trade Union Case:    

PNA submitted that the Complainant should appropriately be graded as a Senior Social Worker.

PNA said the Complainant has worked for the Respondent as a Social Worker since September 2006 and she was appointed to a permanent post on 31^st May 2007.

PNA said the Complainant became entitled to be appointed as a Senior Medical Social Worker in 2009 when:

• She had accumulated more than 3 years’ post graduate experience.

• She had been working in a specialised environment.

• She was working ‘single handedly’ i.e. not reporting to a Team Leader.

PNA said the Complainant reports directly to a Principal Social Worker and has so done since 2006.   She is working in the specialist area of Mental Health for 10 years in September 2016.   From 2006 to 2013 she worked on named area Rehabilitation Team carrying out the role equivalent and similar to a Senior Social Worker.   Since May 2013, she has been assigned as the only Social Worker on the COPE Team.   In September 2013 she trained as a Behavioural Family Therapist.   She organises and delivers the Meriden Family Programme to families and facilitates Family Education Groups at evening and weekend sessions.   She provides Social Work Services single handedly to a named Team.   She has never reported to a Social Worker Team Leader.   She fulfils the criteria and carries out the full role of a Senior Medical Social Worker.

PNA said it should be noted that in the Area there are 4 senior Medical Social Workers, all of whom were appointed to their posts having achieved the agreed criteria in the Adult Psychiatric Services.   They said there are also 2 Senior Medical Social Workers in the Child and Adolescent Mental Health Services who were regraded because they met the criteria.

PNA said the Complainant is the only Social Worker in her Area who meets the criteria but is not graded as Senior.   They also said she works in a multidisciplinary team of 33 staff of various disciplines but she is the only one paid at a basic grade

The Complainant first wrote to her Manager on 4^th August 2011, seeking the appropriate grading.  

PNA said that the Complainant satisfies the defined criteria for grading as a Senior Social Worker since 2009.   She enjoys the support of her (named) Manager, Principal Social Worker who in a letter to a named manager requested that the Complainant “be treated equally with her peers.”   PNA said that all of the Complainant’s peers in her Area who satisfy the criteria are already graded as seniors and there are no other social workers in the Service who currently meet the required criteria.

PNA said that in 2010 they brought an exact replica case to a Rights Commissioner (r-087925-ir-09/JW) in which in the very same circumstances the Rights Commissioner stated “the Employer’s Representative accepted that the Claimant is entitled to be upgraded to the post of Senior Medical Social Worker” and that Commissioner went on to recommend same.  

PNA said another case was heard by the Labour Court involving a similar claim in which the Labour Court upheld the recommendation of a Rights Commissioner to award Team Leader status to that Claimant stating:

“In these circumstances the Union’s claim should properly be classified as being for the application of the appropriate rate for the job…………………………… in the nature of an individual regrading, rather than for an increase in the existing rate.   As such the claim is not precluded by the Public Service Agreement 2010 – 2014”

PNA said that the Complainant’s peers doing the same work as the Complainant are paid as Seniors as the appropriate rate for the job and the Complainant is likewise seeking payment of the “appropriate rate for the job.”

The Complainant is very concerned at the delay in finalising the matter as she first applied in 2011.

PNA said that the Complainant is currently paid at the Max 8^th point of the Psychiatric Social Scale, €56,889 per annum.   Had she been appointed as a Senior Medical Social Worker / Single Handed, when she applied she would by now be on €63,886 per annum.   PNA submitted calculations and examples of the losses suffered by the Complainant.

PNA said they were seeking a recommendation that the Respondent apply Senior Medical Social Worker Status to the Complainant from the date of her first application, 31^st May 2011, with the appropriate arrears.

Summary of Respondent’s Position:    

The Respondent said that the Complainant is employed by them as a Social Worker since 2006.   She is working as part of a multi disciplinary team in psychiatry and reports to a Principal Social Worker.   The multi disciplinary team consists of a number of professions including, nursing, psychiatry and psychology.   The Social Work cohort with the Mental Health Services have an agreement reached on foot of the Report of the Expert Group on the various Health Professions in 2001, in which positions designated as ‘single handed’ were entitled to upgrading subject to conditions, upon attaining 3 years service within that specialist area.   At the time of the recommendations of the Expert Group, social work with Mental Health Service was in its infancy, there were a number of stand alone social workers and there were no Principal Social Workers in the Service.

The Respondent said the Complainant is a Professionally Qualified Social Worker (PQSW) and reports to a Principal Social Worker within a named Mental Health Services Area.

The Respondent said the Complainant takes issue with the fact that other social workers in Service have paid as senior social workers and that on that basis it is not reasonable for her to be paid at a lesser rate.

The Respondent said that the Agreement reached in 2001 is very prescriptive in stating the criteria for upgrading from basic to senior grade.   The Respondent said they would submit that the Complainant’s post is not a ‘single handed’ post, but in fact is a Social Work Post assigned to a multi disciplinary team and supervised by a Principal Social Worker.  

At the time of the Expert Group Report the issue of ‘single handed’ post was a particularly difficult issue given that there were no professional management structures in place for social work in many area including mental health.   They said the appointment of Principal Social Workers has entirely negated the need for any upgrade of social workers who work with multidisciplinary teams and report to a Principal Social Worker.

The Respondent said that overall management of the Social Work Service rests with Principal Social Workers and therefore the question of upgrading to senior in line with the Interim Report in view that her ‘single-handed’ status does not arise.   The Respondent said that the Complainant’s job description clearly shows her reporting relationship and her working relationship.

The Respondent said that the Labour Court, in recommendation 18766, did not find any validity in a similar claim.  

The Respondent said the Complainant is claiming that she is incorrectly graded in her post as a social work.   The Respondent reject her claim on the basis that the Complainant does not meet the criteria as set down for upgrading because she works as part of a multidisciplinary team and reports to a Principal Social Worker and cannot be regarded as working in isolation or ‘single-handedly’.

Base on the foregoing the Respondent sought that the claim be rejected and their position be upheld.

Findings and Recommendation:

Section 41 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 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that the Complainant’s claim is that she not on the appropriate rate for the job she performs, and that all of her colleagues who perform exactly the same work are paid/graded at Senior Medical Social Worker Scale.   Accordingly this is not a claim precluded by the terms of the various Public Service Agreements including the 2010 – 2014 one – and as it is not a promotion it is not precluded by the moratorium on promotion.   I further note that the Complainant is fully supported in this by her Manager who recommended that she be treated equally with her peers

It is a fact, not in dispute, that the Complainant is the only one in her area graded and paid at her existing grade and that all of her colleagues performing the same work under the same conditions are graded and paid at the higher Senior Medical Social Worker Grade.   This is unjust, unfair and inequitable to the Complainant and quite ironically she has been performing the work longer than some of those graded and paid at the higher grade pay rate:

As the Labour Court stated in their Decision in AD1242 (an appeal against one of my earlier recommendations) when upholding that earlier recommendation of mine: “In the Court’s view the Union’s claim has considerable merit and it is clearly unstainable to continue an arrangement whereby different rates are paid for identical work.”   I endorse and agree with that view of the Labour Court and I believe it equally applies to the instant case.

Based on the foregoing I see considerable merit in the claim and it is upheld.   However, notwithstanding the foregoing I accept that it would cause genuine problems to the Respondent to have to pay retrospection for a period of almost 5.5 years.

I recommend that the Respondent upgrade the Complainant to the post of Senior Medical Social Worker within 4 weeks of the date of this recommendation, to be effective from January 2015.   I further recommend that as gesture of goodwill the Respondent should pay the Complainant the sum of €1,500.00c which is a compensatory lump sum payment and is not remuneration or arrears of remuneration, this sum also to be paid within 4 weeks of the date of this recommendation.

I so recommend.

Dated: 7/11/2016