ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00003522
Dispute for Resolution:
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-00004972-001 | 01/06/2016 |
Venue: WRC; Lansdowne House, Ballsbridge, Dublin 4.
Date of Adjudication Hearing: 19/01/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, 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 Complainant is employed as a case Manager. She has claimed that her employer has not applied the terms of a Circular concerning her rate of pay. She is seeking an adjustment in her pay and compensation for the failure of the employer to address her complaint.
Complainant’s Submission and Presentation:
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The complainant had a permanent contract as a Public Health Nurse commencing 2001. She was at the top of the salary in excess of three years. Her pay was €57,217 which includes €54,426 plus a qualification allowance of €2,791. On the 4th of June 2013, she commenced in the new post of case manager (this was paid analogous at the grade VII salary scale) within the Disability Department and successfully obtained this through an expression of interest competition while retaining her Public Health Nursing Contract and pay.
In 2015, the case manager post was advertised at national level at the grade VII salary, an eleven point salary scale from €47,015 to €61,417 per year, within the Disability Services on a permanent basis. She was successful following a competitive interview process and was placed second on the panel and was offered the post on a permanent basis on 3rd May 2016.
The initial contract that was offered was for a salary of €54,801, (less that she was on as a Public Health Nurse). After questioning this, her employer agreed that the salary to be offered to her should be the ‘point nearest on the new scale but not below’ (this is directly taken from Circular 10/71, section 14 paragraph vi). The revised starting salary was now the 9th point of €57,234 with the condition that she was to remain on this point for three years, with the next increment date being 3rd of May 2019.
Through further email communication, her employer advised that “Circular 10/71 is not applied in your case as you are changing grades – i.e. Nursing to Management Admin. Circular 10/71 ‘Pay on Promotion’ is only applied for promotion within the same grade”. Upon questioning no documentation or decision was produced to substantiate this.
She applied for the permanent post of case manager within the Disability Department for the following reasons:
She considered it to be a natural progression in her career and had been doing the job since 4/6/2013,
It is paid as a grade VII analogous post attracting a higher salary,
A promotional opportunity for her.
Principle supporting her position
The advertisement sets out the criteria, the terms and conditions under which the competition is to be run, creating a prospectus. These documents describe major features of a proposed competition in enough detail so that prospective competitors or participants may evaluate to compete or participate in the process.
A definition of what is considered to be a promotion within the workplace is defined by most reasonable documents referred to is as follows: “the advancement of an employee within a company position or job tasks. A job promotion may be the result of an employee’s proactive pursuit of a higher ranking or as a reward by employers for good performance. Typically it is also associated with a higher rate of pay or financial bonus”.
Accordingly the foregoing definition applies in her case on the basis of:
She proactively pursued a higher ranking role.
With a higher rate of pay.
Higher reward in terms of job tasks.
Higher reward in terms of hours of attendance pattern.
Higher reward in terms of follow on promotional expectations.
Higher self-esteem and fulfilment and a more in-depth knowledge and experience of provision of health services.
Submitted herewith a copy of the Labour Court recommendation (LCR 21104)(appendix L);
“The court understands that prior to the conclusion of the collective agreement referred to above that practice of the HSE included appointment of staff to carry out duties of a higher grade on (a) a permanent promotional basis, (b) an ‘acting’ basis, and (c) a temporary assignment basis. The parties’ collective agreement did not provide for any alteration or pre-existing arrangements for payment of staff at the point of taking up higher duties under any of these circumstance.
The Court believes that the collective agreement referred to above brought to an end the previous facility to have staff assigned to higher duties on an ‘acting’ basis. That agreement therefore also brought the payment arrangements associated with ‘acting’ to an end. The agreement did not bring to an end the process of temporary assignment of staff to higher duties or its attendant payment arrangements”.
It is clear that the employer applied the provisions of 10/71 to all staff who were permanently appointed when promoted to a higher grade and in particular the application of the provisions of paragraph 14 of same. It must also be noted that the government policy of no promotion and recruitment was implemented in the Health Services since 2007 with no recruitment in the clerical administrative area until the regularisation process as contained provided for in circular 17/2013. It is reasonable to assume that had the HSE established a new practice that it would be brought to the attention to the court at that time. In the absence of such reference being made, therefore it has to be determined that the pay arrangement to apply to persons who are permanently appointed to a higher grade was on the basis of the provisions of paragraph 14 of circular 10/71. In point of fact the reality of the circumstances were that these provisions continued and were applied since 1971 and could not have been applied in the administrative area since 2009 as provided for by reference to circular 15/2009 (paragraph 4)which implemented the government’s decision on recruitment and promotion within the health sector.
The prospectus, criteria, rules, regulations as per the advertisement, the normal recruitment rules on promotion applied within the HSE for a considerable period of time. Consequently it is contended that a legal entitlement exists and that a legitimate expectation arises and therefore the full provisions of circular 10/71 (starting pay and promotion) should apply in this instance case. In addition these provisions do not differentiate between grades, groups or category of staff but simple refer to permanent or temporary appointments.
The Labour Court in recommendation accepted by the employer recommended that on regularisation of temporary people that they be comprehended by the provisions of circular 10/71 on their temporary appointment.
In the employer communication to her they have advised that “Circular 10/71 is not applied in your case as you are changing grades –i.e. Nursing to Management Admin”. She contends that the foregoing statements are materially false, incorrect and vilify the applicant. It is contended and from examination of the employer’s own documentation and reference herewith Terms and Condition of the advertised post, section of Probation which in fact references the application of the provision of circular 10/71 “Every appointment of a person who is not already a permanent officer of the Health Service Executive or of a Local Authority shall be subject to a probationary period of 12 months as stipulated in the Department of Health Circular No. 10/71”.
On an examination of the employer’s consolidated salary scales it does not list the Case Manager role and function and it does not list the role of case manager as an administered role and function. In particular quoting
“Significant experience of working in Disability Services in the HSE or voluntary sector, as relevant to this role
Significant experience of Case Management or significant elements of case management processes such as placement, discharge liaison, co-ordination of packages of care etc., as relevant to the role
Significant experience working as part of a multi-disciplinary team in Disability Services”
These foregoing principals/ rules clearly demonstrate that the role of case manager is not an administrative one, in order to acquire the relevant experience one has to have or be in a clinical role or position prior to applying for the position and that the salary is analogous to a grade VII salary.
And further more section 8 of the contract of employment offered to her states “you are required to maintain your registration with the relevant Professional Body for the duration of this employment and evidence of such registration/ renewal must be furnished annually to your Line Manager (if applicable)”.
It is also contended that the flexibility principles established under the various National wage Agreements are being breached particularly the principle of flexibility of deployment in an integrated public service and referenced in this regard are:
PSA paragraph 1.8 - 1.9
Chapter 6 of the PSA refers – paragraph 3.6 - 3.10 onwards also apply
Paragraph 3.1 - of the LRA.
The principal being established here is clear in that the Irish public health services in particular will have total flexibility.
The employer in this case has also a duty of care under the Health Safety and Work Act 2005 and its various provisions and it is obliged and required to act reasonably. It is therefore clear from perusal of the above and on examination of the actions of the various departments within the HSE that this duty of care to her has been seriously breached, in point of fact it could be construed that the employer has particularly targeted, singled out and administered ill treatment, misrepresented their position, misinterpreted their duty of care, misapplied rules/ regulations and victimised DD in this circumstance. Consequently the provision of the Health, Safety and Welfare legislation has to be considered on the basis of the aforementioned treatment.
It is also clear that she has been and is being discriminated against on the basis of her grade under the equality legislation. Consequently the provision of the equality legislation has to be taken into consideration on the basis of the aforementioned treatment.
In all of the circumstances it is contended that the employer should be penalised pursuant to the equality legislation and be estopped from taking such discriminate actions against an individual employee and in these circumstances compensation for the unjustifiable and unfair actions is being sought.
Conclusion:
From a perusal on the documentation associated with the advertisement of the position, the terms of the advertisement “Every appointment of a person who is not already a permanent officer of the Health Service Executive or of a Local Authority shall be subject to a probationary period of 12 months as stipulated in the Department of Health Circular No. 10/71”
In addition on the same document under working week there is reference made to the application of the various national agreements in relation to the working hours. Thus applying principals agreed in a national collective agreement regarding the weekly working hours.
The doctrine of legitimate expectation herewith is quoted from a Google search, the definition of a legitimate expectation being “it is an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice”.
The Health Act 2004, section 60 & 63, I refer in particular section 63 (a); “Every contract, agreement or arrangement made between a specified body and any other person and in force immediately before the establishment day – (a) continues in force on and after that day”. Section 60 (2) “Except in accordance with a collective agreement negotiated with a recognised trade union or association of employees, a person transferred under this section is entitled, while in the employment of the executive, to terms and conditions of employment no less favourable that those to which the person was entitled immediately before the establishment day “and Section 60 (3)”Until the terms and conditions of employment to which a person transferred under this section was entitled immediately before the establishment day are varied by the Executive after consulting and reaching a collective agreement with the recognised trade union or association of employees concerned, they continue to apply to that person while in the employment of the Executive”.
Accordingly it is contended that the application of the provisions of 10/71, should reasonably flow from the established practice of over 46 years. It is therefore the expectation of her and any reasonable person that the remedy, the relief and the promise should ordinarily flow unless otherwise agreed and there has been no agreement to date to have another methodology or system apply. In these circumstances it is reasonable that these provisions create a legitimate expectation to have the provisions of 10/71 apply and to deny same is a breach of:
The terms and conditions of the competition.
The equality legislation.
Duty of care due to the individual under the Health and Safety to work Act 2005.
The principles as agreed in a National Collective Agreements (PSA, HRA and LRA).
The labour court recommendation
It has also been demonstrated that the tradition, custom, practice has been in terms of the appointment of Officers and Servants has been in accordance with the provisions of 10/71. In this instance case paragraph 14 of 10/71 sets out the criteria for dealing with individuals who are promoted within the Health Service. In this case to part apply a provision of these principles is a gross injustice, unfair, unprecedented and biased and cannot be allowed to go unchallenged. It is also clear that the definition of promotion is clear and that any deviation from the application of the norms on advancement promotion is grossly at variance with the requirements to treat and deal with individuals on the basis of a duty of care and on the basis of fairness, equality and in comparison with colleagues. Therefore the employer should be penalised for seeking and treating her in this unfair, unjust and unprecedented and biased way on her permanent appointment.
The statements made by the contracting department of the employer to her can only be interpreted by any reasonable person as being mal informed, misapplication of circular 10/71 or an attempt to create a new practice which has not been agreed in any forum to date thus breaching the industrial relations norms and the collective agreements norms and could at best be described as maladministration. Furthermore as the employer has not evidence based in any forum or produced any circulars approving its actions or attempted actions/ decisions and that it cannot produce a decision maker to whom the decision not to apply the provision of 10/71 is clearly malfeasance at its worst. The employer as a major public employer is not empowered to arbitrarily impose, restrict, curtail, refuse or refrain from implementing legitimate circulars or varying any of these circulars without going through the appropriate process and is in fact in breach of section 2.14 of the PSA as it did not enter into any discussions with the claimant and is also in breach of section 60 and 63 of the Health Act 2004 which conferred on her the legal entitlements to have section 14 of circular 10/71 applied to her.
The employer has made a recent offer to me to resolve this issue: “the granting of a further increment which would give me the first LSI on my permanent employment this was made to me on Wednesday the 11th of January by the Employee Relations Department. On seeking clarification and justification for this improved position no written or confirming approving document has been forwarded to me despite my request to do so and in the interim I have declined the offer. It is interesting to note that having discussed the issue with the employer that they are in fact referencing another document and misapplying its provisions in the offer and that is the collective agreement on the granting of incremental credit in respect of previous relevant service. The offer was for an additional increment for three years’ service however at date of appointment May 2016. She did not have the required three years actual service at that point in time. However had this been a genuine offer instead of a bastardisation of different aspects of starting pay on promotion and incremental credit they should have and could have offered the top of the scale as she had already completed over two years in the grade.
Relief Sought:
The claim therefore is that the employer should apply the particular provisions of paragraph 14 of circular 10/71 to the Complainant from date of her appointment i.e. Sections (vi) and (vii) which has the effect as follows:
Existing salary = 57,217
Application of 10/71 = 61,417
Difference = 4,200
These provisions section (vi) and (vii) of paragraph 14 of circular 10/71 should apply with affect from May 2016.
Compensation is being sought on the basis that it has been demonstrated in the foregoing that DD is being and is continuing to being victimised, singled out, and treated differently in every respect regarding her appointment to the post of Case Manager. The Employer should suffer a punitive sanction (monitory) sum. A compensatory award of minimum €25,000 on the basis of being in post since 4th June 2013 to January 2017, at a sum of 4,200 per year for three and a half years and a punitive imposition of one and a half times of that amount on top of that sum amounting to a total of €36,750.
In conclusion it is respectively requested to find in favour of the Complainant and to confirm that the provisions of circular 10/71 (vi) and (vii) paragraph 14 of circular 10/71 shall apply to her appointment in May 2016. In terms of compensation an award of such a nature should be made so as to dissuade this employer from treating any of its employees in the foregoing way and therefore compensation of €36,750 should be awarded.
Respondent’s Submission and Presentation:
The complaint before the hearing is “My complaint is under the Industrial Relations Act, more specifically it is the non-application Circular 10/71(starting pay and promotion provisions). I am currently being paid as a Public Health Nurse, with the Employer. Following successful interview I have been offered the post of case manager within Disability Services (Grade VII), the issue I have is with the starting pay that I have been offered for this post. Please note at this point I do not have representation but would like the option to retain one should I feel I require one”
Introduction/History/Context
The Complainant was employed by the Employer as a Public Health Nurse with effect from 2001 to 2nd May 2016. In 2013 an Expression of Interest was advertised for two positions of Case Manager (Analogous to a Grade VII). She applied for the position & was placed in one of the positions of Case Manager, on existing Terms & Conditions of Employment with effect from 4th June 2013.
In October 2015 a competition was advertised for the permanent position of Case Manager. She competed for the post and was appointed to the position in a permanent capacity with effect from 3rd May 2016 and was paid at the 7th point of the approved scale i.e. €54,801.
She issued a letter to the National Recruitment Services on the 4th May 2016 requesting a review of her salary scale on appointment as she was currently on maximum point of the Public Health Nurse salary scale € 54,426 and was also in receipt of a Qualification Allowance €2,791 per annum
The National Recruitment Service responded on the 18th May 2016 to confirm that on appointment the qualification allowance will be added to her existing salary (€54,426 + €2791) which will appoint her to the nearest point not below on the Grade VII salary scale i.e. € 57, 234, with an increment date of 3rd May 2019.
She queried why the Department of Health Circular 10/71 was not applied on her appointment as Case Manager. The National Recruitment Service responded to advise “Circular 10/71 is not applied in your case as you are changing grades- i.e. Nursing to Management/Admin. Circular 10/71 “Pay on Promotion” is only applied for promotion within the same grade”. Corporate Employee Relations Service also confirmed same via email dated 20th October 2015.
Subsequently she referred the matter to the WRC for adjudication
Management position:
The Department of Health Circular 10/71 did not apply to her appointment as Case Manager as the circular stated governs pay on promotion. Her appointment as Case Manager was not deemed a promotion. The Director of Human Resources issued decision number in January 2003 which deals with “starting pay” which states: “Circular 10/71 governs starting pay and promotion. To date promotion was viewed as progression within defined streams, i.e. nursing, paramedics.
Increasingly, over the last number of years, people are changing careers and moving in different streams. These are not viewed as promotions, but rather as a change of career.
Accordingly, for the purpose of incremental credit, as they have no prior experience from the grade, they are not entitled to move beyond the first point. However, in a situation where staff are going from one career stream to another it is not appropriate to remunerate them on a first point of the new salary scale.
In order to address this anomaly, having reviewed the Circular 10/71, the most appropriate paragraph would seem to be Paragraph A: “Where the same salary scale applies to the officers existing office, and the office to which he has been newly appointed, he shall remain on the same point of the scale and may retain his existing incremental date”. “Accordingly, I recommend that where salary scales overlap and staff are commencing a different career, they be placed on the next nearest point, not below, excluding long service increments, and retain their incremental credit date. Staff on the maximum point of their previous salary who as a consequence of this decision are appointed to the maximum of the salary scale and suffer a loss of income should access the LSI in accordance with the normal rules (taking into account time spent on the max of own scale with a minimum of one year to be spent on the max of the new scale).
The foregoing decision is applied by the National Recruitment Service to any/all employees. Executive who are moving across categories/groups therefore she has been treated in line with any other employee in the same situation who have been appointed by the National Recruitment Service to date
The Employer having reviewed her assimilation to the Case Manager Salary Scale, noted that the 3 years temporary service as “Case Manager” was not taken into account on appointment & in order to try to seek to resolve/settle this issue, discussed the matter of appointing her on the 1st LSI of the Case Manager Salary Scale i.e. €59,322. This offer was made in good faith however the complainant refused and advised she would only settle for the 2nd LSI i.e. € 61,417 from date of appointment. The Employer could not concede on the counter proposal.
Conclusion
The Employer contend that:
- Decision number DHR/135/03 signed by the Director of Human Resources governs “starting pay” for employees changing careers and moving in different streams.
- Circular 10/71 governs starting pay on promotion. Her appointment as Case Manager was not a promotion. Promotion is viewed as progression within defined streams, i.e. nursing, paramedics, therefore it does not apply in respect to her appointment as Case Manager
- She has been treated in line with any other employee in the same situation who have been appointed by the National Recruitment Service since 1st March 2003
- There are a large number of individuals who are in similar positions with the Employer. Therefore concession of the principle in this case would be applicable to these with consequential costs attaching to the individual cases.
In view of the foregoing it is requested in the circumstances outlined to find that her complaint:
has been appropriately appointed as per Decision DHR/135/03
the Employer has no case to answer
Findings
I note the conflict of evidence in this case regarding whether the appointment as Case Manager was promotion, the Complainant believes that it was and the Respondent does not.
I note that the job of Case Manager does not require a nursing qualification.
I find that the requirement to maintain her registration with the relevant Professional Body for the duration of this employment is a normal and regular requirement for this employment sector and may not be construed as a requirement for the job of Case Manager.
On the balance of probability I conclude that this is a career change and not a straight promotion.
I find that the Respondent erred in the application of the rate of pay when the Complainant was appointed.
I note that following a query being raised on this matter it was addressed and she was placed on €57,234, which is above the maximum rate that she was on as a public health nurse.
I note that she is seeking the application of the Long Service Increment (LSI) 2 as she was three years on the maximum point of the public health nurse scale and that she has been three years in the Case Manager role.
I note that the Respondent as a gesture of goodwill offered her the LSI 1 as she had been performing this role for three years, but this was not accepted.
I find that her appointment as a Case Manager was not a career progression in nursing. It was a change of career.
Therefore I find that it was a new career sought by the Complainant.
I find that the Respondent erred in the application of the proper rate when she was appointed Case Manager.
I did not find any evidence to support the Complainant’s view that she had been treated unfairly or victimised by the Respondent which impacted upon her in terms of the Safety Health & Welfare at Work Act or the Health Act.
Neither did I find that she had any justification for the assertion that she had a legitimate expectation of having her complaint met.
I find that her claim for financial compensation was wholly inappropriate and unwarranted.
Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a recommendation in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
I recommend the following in full and final settlement of this dispute:-
The Respondent should place the Complaint on the Long Service Increment 1 pay scale from date of acceptance.
The Respondent should pay the Complainant compensation of €2,000 for the inconvenience caused by their error in placing her on the incorrect rate of pay when she was appointed Case Manager.
These should be implemented within six weeks of the date below.
Eugene Hanly
Adjudication Officer
Dated: 10th April 2017