ADJ-00004961

ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00004961

Parties: 

Complaint for Resolution:

Date of Adjudication Hearing: 8th December 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 16^th September 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act. The complaint was scheduled for adjudication on the 8^th December 2016. The complainant was represented at the adjudication by the IMPACT trade union and four witnesses attended for the respondent. The complainant is an office coordinator and the respondent is a national division of a public service provider. 

In accordance with section 13 of the Industrial Relations Acts 1946 - 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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.

Background:

The complainant is an office coordinator in a national office of the respondent, a large public body. She seeks regularisation of her clerical office role, which is currently a grade III. The respondent denies the claim and states that various options have been put to the complainant.

Summary of Complainant’s Case:

The complainant started her role in the respondent division on the 27^th January 2014 and was currently graded a grade III. Her claim is one for regularisation at a higher grade. She outlined that she had previously worked for another part of the respondent as a clerical officer and had successfully obtained the appointment to her current role following an interview. She stated that the new role had been advertised as being Grade IV to VI, but her grade had not changed following her appointment. There is a Job Evaluation Scheme in place to assess existing roles for upgrading, but this stands suspended. It was open for the respondent to present a business case in order for roles to be upgraded. 

Addressing the nature of her role, the complainant outlined that it has expanded to a Grade VI role. It is a two-person office, consisting of her and her line manager and they carried out national functions relating to sustainability, in particular with reference to energy, water and waste. This was a specific, complex role and she joined the office at the outset of the new office’s work. It had originally been the energy office, but its role had been broadened to address sustainability issues generally. The complainant had completed a third level qualification in the area and she later developed the respondent’s sustainability policy. She also coordinated projects with the counterpart in the United Kingdom and other EU projects. She had developed the office’s website and dealt with its communications. She responded to senior management regarding queries and Freedom of Information requests. She wrote articles and newsletters about the office’s work. She ensured that all reporting requirements were adhered to regarding energy consumption across 2,000 sites. There was a forthcoming large collaboration with the UK counterpart and commented that phase 1 of the office’s work had saved €5 million. She commented that the local sustainability officer in a named facility was a grade V, while she carried out the national role at a grade III. She said that she carried out these roles in addition to the normal administrative duties required of the office. 

The complainant outlined that regularisation for her role meant a grade IV role, while her understanding that the role she was carrying out was that of a grade VI. She submitted that it had been open to respondent to have offered her a temporary contract so that she could have availed for regularisation at a later date. She submitted that a solution now was that the complainant be assigned a higher grade on a temporary basis in order for this to be regularised later. 

The complainant outlined that there were a number of options open. The first was the option of a temporary contract; the second was that she be assigned the grade VI role; a third was that the business case would be submitted in line with the regularisation process and fourthly was that the job evaluation scheme would be applied.

Summary of Respondent’s Case:

The respondent submitted that the complainant had been transferred to a named division of the respondent. Prior to this, she had attended a skills match meeting and this did not amount to an interview. The complainant was transferred on the same grade as she had worked. This has been a new role, so it was not clear what the grade should be. It had been pencilled in as a role between grade IV and VI at the time expressions of interest were sought. 

The respondent submitted that the complainant did not meet the criteria for regularisation. It outlined that the expressions of interest process had been availed of during the public sector moratorium, but transfers made on the basis were always on the same grade. The respondent confirmed that the complainant’s application for regularisation had never been submitted. 

The respondent submitted that the complainant had sought regularisation at grade IV, but was now seeking a post at grade VI. A business case could be made for the role so that it was made to a grade higher than grade III. This had been offered to the complainant and there could be no guarantee that the outcome would be a grade VI and whether the complainant would be appointed to the role. The respondent was not in a position to give undertakings in respect of the conclusion of the application of the business case process to this role. 

In respect of the regularisation appeal process, there were three possible outcomes. The first was that the post would be regularised; a second was the allocation of a temporary acting contract and the third was the application of the job evaluation process. In this case, there was only one grade III post to consider. The respondent stated that a named representative had offered to go back to the complainant to discuss the temporary contract option. The respondent accepted that if the complainant only carried out grade III duties in the office, the respondent would have to recruit a more senior staff member to undertake the additional duties performed by the complainant in the office. 

After the adjudication, the respondent communicated to say that it was not in a position to reconsider the complainant’s position (as mooted during the adjudication) and on the 30^th December 2016, it emailed the business case regularisation application completed for the complainant, but not processed.

Findings and conclusions:

The complainant started working in the respondent office on the 27^th January 2014, when the office commenced its national role in relation to sustainability. The complainant gave evidence of an impressive series of achievements in that role, including substantial cost savings. The respondent readily accepted that if the complainant fulfilled only her duties in accordance with her grade III post, it would have to engage an additional staff member to carry out the more senior duties now undertaken by the complainant. 

The expression of interest provided at the time the complainant was recruited stated that the office coordinator role fell in the range of grade IV to VI. When the complainant took up the role, she retained her grade III. While I do not have detailed job specifications for each grade between grade III and VI, it is clear that the work the complainant does is of a higher grade than grade III. 

The parties helpfully discussed various options. They include the temporary assignment to a higher grade or the complainant’s assignment to a particular grade, for example grade VI. They include availing of the Job Evaluation Scheme, which, while currently suspended, will permit the re-evaluation of the role. I understand that should this lead to post with a grade higher than grade III, the complainant will have to apply for the role and that it will be open to colleagues in the relevant national division to apply. The last option is the regularisation appeals process.   

In respect of the regularisation appeals process, I note that while it is closed for new applications, this arose from a circular letter of the 17th July 2015 (exhibited by the respondent). I note that the submission made on the complainant’s behalf went astray. The respondent supplied this document to me in an email of 30^th December 2016, and it seeks to move the complainant to a grade IV post. The regularisation appeals process presents many attractions. It was established to ensure that a consistent approach in considering applications for regularisation and the named arbitrator is independent and his decisions are binding. I note decisions of Adjudication Officers in ADJ 3458 and ADJ 4174 which point to the value of the regularisation appeals process in assessing a case such as this. It is a process that is expert, consistent and flexible and can best address this claim. This case should have been dealt with by the regularisation appeals process and I believe that it is still appropriate to address the claim within this process. 

It is clear that the complainant should be assigned on a temporary basis to a higher grade and this should be backdated to the 19^th June 2015, the date the application for regularisation was signed by the head of the relevant national division. This is pending the outcome of the regularisation appeals process. I am not in a position to recommend a particular grade because I do not have the detailed breakdown of the differences between each grade. I note that the regularisation application was made for a grade IV. I also note that the complainant was able to point to a local sustainability manager in a named facility who was a grade V, suggesting that the person with a national role should have a higher grade, i.e. grade VI. I would, however, be plucking a grade from the air, were I do so without additional information.

Decision:

Section 13 of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute. 

CA-00007038-001

Pursuant to section 13 of the Industrial Relations Acts, and for the reasons outlined above, I make three recommendations:

• The complainant be assigned on a temporary basis to a higher grade, within the range of grade IV to VI;

• In making this temporary assignment, the parties should prepare detailed assessments of the role undertaken by the complainant to match this with the most relevant job description for each grade;

• The claim should be submitted to the regularisation appeals process so that it may be dealt with by the arbitrator to ascertain the grade for the complainant and the post. 

Dated:   26 April 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Industrial Relations Acts – regularization