ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000645

Dispute for Resolution:

Date of Adjudication Hearing: 07/07/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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:

 The complainant is in dispute with the respondent surrounding his delayed appointment to the role of Senior Scientific Officer and the consequent anomalies in his pay. There is a considerable history of longevity to the complaint.

The complainant joined the respondent as a Research Officer in 1992.In May 2007, following a restructuring exercise, the complainant laterally transferred to a new role. He contends that this move should have been accompanied by the Senior Scientific Officer grade at the time.

The complainant ran an Individual case through the Rights Commissioner in 2009, in pursuit of this claim, which he appealed to the Labour Court. This was supported by the Union .The Labour Court issued a decision on 6 May 2010

“ ….. It is further noted that the employer accepts that appropriate grading for the particular post in issue is that of SSO. However, they are unable to regrade the post at present for reasons outlined to the Court.

……..The Court believes that the most productive course of action which the parties could adopt in current circumstances would be to have further discussions with a view to exploring those suggestions further. The Court recommends that they engage in such discussions with a view to reaching agreement “

Numerous meetings and discussions followed but no agreement was ever reached .Following the relaxation of the moratorium on recruitment and promotion in January 2015, the Union sought progress on the claim , without success and the complainant was compelled to lodge his claim with the WRC again in November 2015. An initial hearing date of February, 2016 was adjourned by the respondent.

In March 2016, the complainant competed via open competition for the role of SSO and was appointed from May 3^rd. Issues arose with the resultant contract.

1 A probationary period of 6 months applied.

2 The contract reflected a new entrant status.

3 Annual leave was reduced by 2 days

4 Had the issue been resolved commensurate with either the 2007 lateral transfer or the 2010 Labour Court recommendation, the complainant would have secured point 9 on SSO scale rather than the new entrant point 4, which only amounted to a one point increase on his pre-existing scale.

The respondent had sought to amend the annual leave to 32 days prior to the hearing. This was rejected by the complainant.

The Union, on behalf of the complainant contended that that he had worked for 8 to 9 years on the wrong salary .They sought:

1 Access to point 9 of SSO scale

2 Reinstatement of 2 days annual leave

3 Compensation for carrying out the role of SSO from May 2007-March 2016.

Respondent’s Submission and Presentation:

The respondent submitted that the Adjudicator dismiss the claim given that the complainant had been promoted to the sought after position of SSO in May, 2016.

The respondent explained the evolution of aspects of the service which resulted in the complainant return to work at the core respondent service in 2007.

” The redeployment was undertaken on the basis of establishing staff preferences and attributes and matching these to job requirements within the organisation .No regrading took place as part of the redeployment, although staff remained eligible for any promotional competitions open to all the respondent staff”

The respondent accepted the Labour Court Recommendation in 2010, but was hampered by the restrictions placed on it through the moratorium. An opening came in 2014, where following a Voluntary Leaving Programme, 21 posts were sanctioned to be filled at promotional levels and this formed the road map for the complainant to be appointed to SSO in May 2016. It took some time to obtain the requisite sanction to proceed with these appointments. The respondent submitted that this should have concluded matters.

The respondent submitted that they have no other avenue outside open competition to address the complainants claim and they did so at their earliest opportunity.

Findings and Conclusions of the Adjudicator

I have listened carefully and considered both parties extensive submissions in the case. I am struck by the longevity of the claim. I am mindful of the spirit and intent of the National agreements entered into at a time of economic uncertainty in the country. However, I am struck by the detail submitted at the hearing on the testament that the complainant played his role in that survival process. Firstly, by his lateral transfer in 2007 and from that date onwards in his role as Scientific Officer.

I probed at the hearing on how both parties distinguished the SO role prior to March 2016 from the SSO role post March 2016. I learned from the complainant that there was no distinction, no new job description or no new role. This was not disputed by the respondent. It was accepted that the complainant was engaged in a continuum of the same work at the respondent service, albeit on a regraded basis.

The respondent submitted that their hands had been effectively tied to resolve this from 2010 because of national controls and restrictions. I have given some thought to this position. This case is on its second journey through the IR machinery of the state. A careful examination of the employer position as enunciated to the Labour Court in 2010, allows me to conclude that:

“The employer accepts that the appropriate grading for the particular post in issue is that of SSO “

I find that with this contention came a consequential responsibility to act on actualising this, either via the augmentation of an acting allowance or submission of a business case to realise it. I cannot accept that it was fair or reasonable to the complainant to expect him to work on the productivity level required for SSO but be paid at SO. I do not attribute blame at the management team in this regard, I can appreciate the lack of wriggle room, however a Labour Court recommendation carries considerable weight in this state and it was accepted by both parties. The Labour Court anticipated that an agreement on the claim would follow local discussions on an individual basis. They did not hold that the claim was incompatible with or prohibited under the national agreements.

I have considered all the facts and circumstances of the case and I am guided in my decision by a concurrent labour court recommendation in the case of

St Patricks College V IFUT LCR 20435, where the Court held that the complainant” should receive payment on the basis of the work he is required to perform” This case concerned a claim for an assistant lecturer grade ,which the College submitted was not possible due to clause 1.27 of Croke Park agreement . In this case, the Court focussed on the inequity associated with the salary gaps and awarded rectification on the appropriate point of the Assistant Lecturer scale forthwith.

“In the Court’s view the difference between the form and substance of the Applicant’s contract of employment is at issue here. The Worker is employed and paid as a Tutor but is required to carry out the work of an Assistant Lecturer. In these circumstances the Court takes the view that the College cannot rely on the formal terms of the contract of employment to defeat the workers claim. Instead the Court finds that the Applicant is entitled to payment on the basis of the work he is required to perform. Noting that the employer does not dispute the workers assertion that the work he performs equates to that of an Assistant Lecturer the Court takes the view that the commitment in the Public Service Agreement to the effect that no cost increasing claims will be served or progressed during the currency of the Agreement cannot mean that a worker such as this will be paid a rate of pay below the agreed and established rate for the work he performs. In this case the agreed rate for the work being assigned to and performed by the Applicant is the Assistant Lecturer rate of pay.

Accordingly the Court recommends that the College align the pay and work of the worker concerned with the established rate for the job and place him on the appropriate point of the Assistant Lecturer Scale with immediate effect”.

In the instant case, the complainant competed for his own position. I believe that was a sufficient gesture on his behalf as he absorbed the risk of not being successful. He displayed a high level of responsibility, decision making and commitment to the respondent organisation.

I find that his case is unique and is in fact a legacy issue arising to be dealt with in a fair and reasonable manner.

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. Section 13 of the Industrial Relations Act requires me to make a recommendation .

Based on my findings and conclusions as listed above, I recommend that the respondent address the legacy issue of this case on a red circled equitable basis for the complainant alone. I recommend that:

1 That the probation period aligned to the present post of SSO is considered already served.

2 That the complainant is placed on point 9 of the SSO scale from his date of appointment.

3 That annual leave of 32 days be red circled to the complainant for the duration of his SSO contract

4 That he be paid €10,000 in compensation for recognition of service from 2007 -2016.

I make this recommendation in full and final settlement of all claims against the respondent.

 Dated:   5th September 2016