ADJUDICATION OFFICER RECOMMENDATION.

Adjudication Decision Reference: ADJ-00001980

Dispute for Resolution:

Date of Adjudication Hearing: 7th July 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 1969 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.

Summary of Complainant’s Case:

The Complainant said that the claim in this case was for compensation to reflect the number of years she spent Acting Up.

The Complainant said she is a long-serving employee of the Respondent, who commenced employment with the Respondent in August 1988 as a Clerk Typist.  

In January 1993, the Complainant was appointed to a Clerical Officer Position and in April 2001 to a Grade 4 Assistant Staff Officer.   In 2002 she was seconded to work for the Property Manager and over time she took on additional roles and responsibilities with the Office.

In order to formalise her position she applied to have her post advertised in 2002.   At that point the named local General Manager supported her application and referred it to the named Director of Finance with responsibility for Property, who in turn approved an acting allowance at the higher money value using the terminology “equivalent to dual responsibility allowance” and the Complainant was seconded from a named area to the Finance Department – Property Management.

In May 2007, on advice from HR, the Property Manager made application to have the post of Assistant Property Manager created at Grade 7.   The Director of Finance approved this application and the post was created at that level.   This was processed under the 2010 ‘McDonald Agreement’ where the Property Manager and the Director of Finance approved the Complainant’s regrading to that of Grade 7 and the necessary paperwork was submitted to HR.   HR did not implement this recommendation stating that the ‘McDonald Agreement’ did not allow for upgrading by more than one grade.   However, the Complainant is aware of a case where this was disregarded.

The Property Manager supported and approved the Complainant’s regrading at Grade 7 and he wrote to the Deputy Director of Human Resources on 22^nd March 2005, seeking to have her post evaluated.   The Deputy Director of Human Resources responded on 1^st April 2005, and he requested completion of the Job Evaluation Form for return and submission to the Department of Health and Children.   The Complainant said that it later became apparent that there was no process in place to evaluate posts above Grade 6 as this was suspended.

The Complainant said that at a meeting between her named Trade Union and the Senior IRO on 25^th August 2008, the Senior IRO agreed to the regrading on a ‘red circled’ basis and he cited ‘similar to the (named area) case’ with which the Trade Union were familiar.

The Complainant said that despite the undertaking given to both her and the Trade Union by the Senior IRO, HR later reneged on this, which left her with no alternative but to pursue her case on equality grounds.   However the Equality Officer did not uphold the Complainant’s complaint.

Undeterred the Complainant pursued her long-standing grievance through the Grievance Procedure.   At Stage 3 of that Procedure the Complainant met with the Area Recruitment Manager for the Respondent.   The Complainant said that this was the first time in nearly 10 years that she got recognition from the Respondent that she had been treated unfairly; however the determination reached by the Area Recruitment Manager fell short of what the Complainant deemed appropriate.

The Area Recruitment Manager found that the Complainant was incorrectly paid the Dual Responsibility Allowance (DRA) and should in fact have been paid an Acting Allowance, she said that this does tally with the guidelines, however it does not tally with what was the ‘norm’ at the time.

It is the Complainant’s view that there was good reason why she was on a DRA, because she was undertaking work at a much higher level than her pay grade and the very fact that the Respondent recognised this by approving the DRA over a number of years supports her position.            

The Complainant said the HR Memo clearly states “payment of an allowance equivalent to the Dual Responsibility in respect of the level of duties associated” and in fact it was no less than the Director of Finance who supported and approved the DRA in the first instance.

The Complainant maintains that the Acting Allowance that the Area Recruitment Manager outlines in her Determination, whilst giving some recognition to her complaint, should at the very least be based on the DRA that had been originally approved and was the more appropriate allowance considering the value for money the Respondent was receiving by her continuation in her role and responsibilities within the Property Department.

The Complainant believes that had her case been dealt with appropriately by the Respondent in 2003-2004 there would have been ample scope to have it resolved satisfactory and she would have been in receipt of Grade 7 salary for the last 10 years at least.   For this reason the Complainant is seeking financial compensation in recognition for the hamfisted manner in which the Respondent has dealt with her case and the stress in dealing with the long number of years in trying to bring the matter to a satisfactory conclusion.

The Complainant said that she is seeking that the Acting Allowance provided for in the Area Recruitment Manager’s Determination should more appropriately be a Dual Responsibility Allowance originally specifically approved by the Director of Finance -and- she is further seeking that the Respondent should pay her financial compensation in recognition of the manner they have dealt with her case, by way of an ‘ex-gratia’ payment.

The Complainant sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said that the Complainant was upgraded from Grade 5 to Grade 7 under the ‘Regularisation Agreement as part of the ‘Haddington Road Agreement’.   She qualified for regularisation to Grade 7 under Section 6 of the Circular, i.e. Employees who were carrying out the duties but not getting the Allowance.   The Complainant was to be appointed to Grade 7 from 1^st October 2013, in line with the Circular.   Section 5 of the Circular states:

“The provisions of Circular 10/71 or other preferential arrangement for starting pay on promotion, shall not apply in respect of any posts filled through this initiative.   Any post filled from this process, will have starting pay determined by way of the value of any allowance received, added to the basic rate and rounded to the nearest point not below, on the new scale.   No retrospection will be considered, nor will any incremental credit be given for the period spent acting where individuals did not progress on the higher scale during the course of acting.”

The Respondent said that the above provision is quite clear and distinct: “No retrospection will be considered nor will any incremental credit be given for the period spent acting.”

The Respondent submitted that:

• The Complainant was correctly appointed as per Circular 017/2013

• The Complainant was regraded from Grade 5 to Grade 7 and this two grades upgrade only occurred in very few cases nationally

• The Circular was signed up to by all the trade unions within the Respondent employment.   Over 3,000 staff of all different grades were regularised in accordance with the conditions laid down in the Circular.

• The process was to be cost neutral.

• Any variations from the Circular could lead to a whole raft of claims as some staff have been long-term acting since 2001.

• Trade Unions cannot have it both ways, i.e. sign up to a National Agreement and then look to have it set aside for some employees.

• There was/is an internal appeals process for employees who were dissatisfied with the outcome of the regularisation process and this was a nationally agreed process, chaired by an independent person.

• The’ Croke Park Agreement’, the’ Haddington Road Agreement’ and the present ‘Lansdowne Road Agreement’ clearly state: “There will be no cost increasing claims for improvements in pay and conditions either made or processed by the trade unions.”

• The potential cost of acceding to such a claim could lead to claims of up to €30million per anumm

Base on the foregoing the Respondent sought that the claim be rejected.

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 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 and I have concluded as follows.

I can fully understand the justified frustration of the Complainant with the inordinate length of time it took the Respondent Employer to deal with this matter and bring it to a reasonable conclusion.   However, notwithstanding this I do not accept that it is possible for the Respondent to go any further than they already have in relation to the grading and allowances ultimately applied to the Complainant.  

I do however accept that the Complainant is entitled to compensation for the manner in which the matter was handled by the Respondent, including, but not limited to the length of time it took them to deal with it, which is tardy or inordinate by any standards and which caused hardship to the Complainant.

As a full and final settlement of the matters in dispute I recommend that the Complainant accept the decision contained or made in the Area Recruitment Manager’s Determination of her case.   In addition I recommend that the Respondent pay the Complainant compensation in the sum of €3,000.00c within 6 weeks of the date of this recommendation for the manner in which they handled this matter.   For the removal of any doubt I wish to confirm that this sum is not wages or arrears of wages, but rather is compensation for the way the matter was handled by the Respondent Employer.

I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and that it cannot and will not be quoted by either party or any other party in any other case.

Seán Reilly, Adjudication Officer.

Dated: 20/10/2016