ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00004174

Complaint for Resolution:  

Date of Adjudication Hearing: 04/10/2016

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, 1969 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.

Attendance at Hearing: 

Background 

The Complainant is employed with the Respondent since the 14^th of February, 1983. He works in the employee relations area. He sought to be upgraded to Lead Role HR under the newly established structures, chaired by an independent arbitrator. Both sides agreed to be bound by the decision of the arbitrator. The arbitrator found in his favour but the employer failed to implement the binding decision. The Complainant filed a complaint with the Workplace Relations Commission on the 15^th of July, 2016.

Complainant’s Submission: 

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

He was appointed to his current role in early 2003. He was responsible for covering a region which included several counties (details provided). It is a high profile job with significant responsibility. The position has grown over the years and has become increasingly difficult given that he was frequently charged with implementing unpopular reforms while trying to maintain working relationships with staff, shop stewards and full-time officials. He has had Lead Responsibility for all change initiatives with Service Managers. He represents the employer in all claims before the WRC and he provides an advisory service and support service to all Line Managers in the geographical area.

The Employee Relations Manager position in the area became vacant in December 2010. At the request of the Assistant National Director, he agreed to take on the entire role and responsibilities of the Employee Relations Manager in another area (details supplied) and to consolidate a single Employee Relations Service for the Region. Agreeing to do so meant that his life changed dramatically. His responsibilities and workload effectively doubled when he took on and continued to carry the workload of two general manager posts.

Additional responsibilities were also assigned to the role where the Employee Relations Manager was asked to take a Changed Management lead in terms of improvements and efficiencies in service delivery. He took on this role in good faith without complaint and without any additional recompense for the significant increase in responsibility and workload.

The complainant sought regularisation of acting-up post in line with circular 17/2013. This process was completed by the independent arbitrator, Mr. J.D. It was therefore no surprise that the independent arbitrator found in his favour.

In his letter of determination, the arbitrator stated that having reviewed all the facts pending to the complainant’s appeal, he was pleased to uphold the complainant’s claim for Regularisation at the higher grade level of Lead Role HR under the CHO community settings subject to the complainant agreeing duties with his Line Manager. He went on to confirm that his decision was final and binding and that a copy of the decision would be made available to the complainant’s Manager to regularise his position in conformity with his decision and outcome. The Respondent failed to comply with the binding decision of the arbitrator without giving any valid reasons to the Complainant.

Respondent’s Submission: 

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

The case for consideration relates to a claim by the complainant for implementation of the outcome of an appeal procedure recommendation issued in May, 2016. By letter dated the 17^th of May 2016, the complainant was advised by the arbitrator that his claim for upgrading to Lead Role HR under the newly established structures was upheld and stood to be implemented pending agreeing duties wit the Head of CERS in the context of the newly emerging structures. This recommendation was not implemented by the employer.

Arising directly from the economic crash of 2008/2009, the Government imposed a strict moratorium on filling vacant positions in the public service save for the most compelling circumstances which primarily arose in front line services. The impact of the moratorium meant that there were a number of instances where individuals took on duties at a higher level without any financial reward and with an exception that their position would be addressed when circumstances allowed. This scenario lead to a situation whereby the end of 2011/2012, a large cohort of individuals who were now acting-up in positions of a higher level for periods of two years and more and the instances of same continued to increase.

The issue was the subject of discussions with the union and the employer in 2012, including the engagement with the then LCR, however, it was not possible to progress matters because of the provisions of moratorium.

This issue was revisited during the process which led to the Haddington Road Agreement. And a set of draft proposals for addressing the matter was agreed by the parties. Following acceptance of provisions of the HRA by the staff-side, sanction to proceed with a Regularisation Programme was outlined via the provisions of circular 017/2013. The provisions of the same allowed for the Regularisation of posts that had been acted in for two years or more, as of December 31^st , 2012 and also provided for the cessation of acting arrangements for short term absences and revisited starting pay on promotion for this specific exercise. The initiative which was required to be cost neutral resulted in a significant number of upgrading grades across all service grades.

Not withstanding the number of beneficiaries of circular 17/2013 there were representations made by the respective unions that the scope of the process had not been sufficiently broad to encompass the level of acting and taking on of additional duties that was prevalent within the organisation and funded agencies from 2009 onwards. There was a widely held view that there was a necessity for a dedicated process to address such issues in a consistent way, rather that each individual who felt they had a grievance going through the LRC route. Stemming from same, the staff panel and the employer agreed in April 2015, to the establishment of an appeals procedure. It was agreed that Mr. J.D. would undertake the role of Arbitrator to the procedure. The outcome of the Arbitrator was binding on both parties. The Complainant submitted his case to the Arbitrator which was held on April 27^th, 2016. The Arbitrator found that the Complainant should be regularised. The employer refused to implement the Arbitrator’s decision. At the time, they did not give any reasons as to why this was so.

At the Workplace Relations Commission Adjudicator’s hearing which was held on the 4^th of October, 2016, the employer stated that Mr. J.D., the Arbitrator, departed from his Terms of Reference into areas;

 
a. Duties of a Higher Grade were not being carried out, rather the Complainant had taken on additional duties of another person but of the same grade.

b. Mr. J.D., the Arbitrator, did not meet or seek the views of the employer. 

The employer has initiated an independent review of the conduct and undertaking of the appeals procedure on the foot of significant concerns that arose from the carrying out of the process.

Findings 

The findings of Mr. J.D., the Arbitrator, in relation to the complainant’s request for Regularisation of the Acting-up post were as follows;

Dear ….,

Further to your recent Appeal and the recent hearing on the 27^th of April, 2016 in Dublin in respect of the application of the above circular to your present position, and having reviewed all of the facts pertaining to your appeal. I am pleased to inform you that I believe the criteria in the HR circular have been met and I have upheld your Appeal hearing for Regularisation at the new level of Lead HR under the CHO Community Settings in CHO 1,8 and 9, and subject to agreeing duties with the Head of CERS in the context of the newly emerging Community and Hospital structures.

As the Arbitrator appointed to determine the Appeals, my decision is final and binding and a copy of this decision will be made available to your employer/HR manager to regularise your position in conformity with this decision and outcome, and to make whatever changes your employment decision as are necessary to reflect this.

Yours Sincerely,

J.D.

Arbitrator

Recommendation:

Section 41(4) of the Workplace Relations Act 2015, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and under Section 13 of the Industrial Relations Act, 1969.

Based on the evidence presented by the parties at the hearing, I recommend that the complaint is well founded. The Arbitrator upheld the Complainant’s Appeal for Regularisation. His decision is final and binding on the parties and should be implemented forthwith.

Dated:   16^th November 2016