ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00007234
Complaint:
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-00009750-001 | 16th February 2017 |
Date of Adjudication Hearing: 4th July 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with the provisions of 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.
Background:
IMPACT were in dispute with the Respondent in relation to the Grade and Pay Rate of the Complainant.
Summary of Trade Union Case:
IMPACT said the claim arises as a result of the failure of the Respondent to deal with and recognise the fact that the Complainant has been carrying out the duties and responsibilities of a Senior Psychologist, while at the same time is not receiving the same rate of pay for this. IMPACT said that management recognise and support the Complainant’s claim but, in spite of all efforts, nothing has been done to pay the Complainant for the job she is doing.
IMPACT said that following a competition for a suitably qualified psychologist ran by the Respondent in 2005, the Complainant was appointed as a Temporary Grade Psychologist in a named location on 1st March 2005.
IMPACT said that in order to achieve career progression, a psychologist needs to gain the necessary experience to apply for a senior post. By 1st March 2008, the Complainant had the necessary experience to work in a senior post and on 1st July 2008, the Complainant was approved by the Respondent to do so. The Complainant acted in this post for 4 months and she had a reasonable expectation that she would be eligible to apply for a permanent Senior Psychologist post when it was advertised.
In August 2009, a National Recruitment Campaign for Psychologists was advertised. Unfortunately for the Complainant, the eligibility criteria for Staff Grade and Senior Posts had changed. Psychologists with an educational Psychology Professional Qualification (even though those in a permanent post for many years who were already promoted to Acting Senior Psychologists in the care area in which they were employed to Acting Senior Psychologists in the care area in which they were employed) could now only apply for posts in the area of Disability. IMPACT said that unbelievably, the Complainant was not longer eligible to apply for a senior post she was working in since 2005 and Acting in for 4 months. IMPACT said the Respondent conceded a grandfathering clause for psychologists before 2002, but the Complainant did not qualify.
IMPACT said that the change in the eligibility criteria meant that psychologists with a Clinical Psychology qualification could apply for all psychology posts within the Respondent. Psychologists with an Educational Psychology qualification, even those in a permanent post for many years, and who had already been promoted to Acting Senior Psychologist in the Care Area, could now only apply for posts in the area of Disability. Therefore, the Complainant was no longer deemed eligible to apply for a post in the Care Area in which she had been continuously employed by the Respondent since March 2005.
IMPACT said that a ‘Review Group’ was established by the Respondent and IMPACT to address this unfairness and this resulted in the opportunity for those who were unfairly excluded from competing in a Senior Psychologist Competition to undergo a “professional evaluation” based on their experience within a Care Group setting. Those who were “validated” could compete for future senior competitions in their care area. IMPACT said the process took 3 years, but however during this time a second National Senior Psychologist Campaign (2011) followed the same course as before and the Respondent blocked the Complainant’s opportunity for promotion.
In 2012, the Complainant received confirmation that she had “validation” and was eligible for competition thereafter. She did compete, was successful and placed on the National Panel in September 2014. She worked as a Senior Psychologist (Temporary) from 2nd November 2015 to 17th July 2016. IMPACT said she still works as a Senior but she is paid a Staff Grade Level. They said that however, following the most recent National Panel Interviews she was not panelled even though she has been doing the job since 2008. IMPACT said that the eligibility criteria for these positions still remain as a disadvantage for those who do not have a Clinical Psychology qualification.
IMPACT said that the ‘Review Group’ responded in June 2016, and confirmed the revised eligibility criteria for the recruitment of qualified psychologists. IMPACT said that had this been in place in 2008, the Complainant would, in fact, have qualified. She has been needlessly excluded from two competitions, whilst her colleagues, with far less experience than her, have been afforded the opportunity to progress to a Senior post. IMPACT said that this unfairness impacted on the Complainant’s confidence and cast an unfair shadow on the fact that she had not been promoted.
On 10th August 2016, the Complainant wrote to the Area Manager and laid out the background to her upgrading claim. She sought this Manager’s support to progress this matter and her recollection of this Meeting is a very positive one where the Manager supported her claim. On 25th August 2016, the Manager supported the Complainant’s upgrade claim and he sent the supporting documents to the named Chief Officer for his consideration. At a Meeting on 5th October 2016, the Area Manager informed the Complainant that she would not be in a position to upgrade her post and she suggested that the only process that may facilitate consideration of her claim is the Job Evaluation Scheme (JES). IMPACT said that regretfully the JES is not open to the Complainant.
With no progress made, IMPACT referred the complaint to the WRC Adjudication Services.
IMPACT said it is their position that the Complainant took on the role of Senior Psychologist in good faith and on the clear understanding that she would be paid for it at the first opportunity. As a result of this her responsibility and workload increased well above her current grade and she is clearly now working more appropriate to a higher grade and they said this this fact is accepted by senior management who have written en masse to support the Complainant’s claim for ‘the rate for the job’.
IMPACT said that having carried out the full responsibility and duties of a Senior Psychologist since 2008 it is unacceptable that management now state they will not pay the Complainant the rate for the job. They said her job description clearly show that the work she is doing is that of a Senior Psychologist. IMPACT said that management themselves make the case that the post is higher than that of a Staff Grade Psychologist.
IMPACT said it is recognised at every level of management throughout the service that the Complainant is working in the role of a higher grade. They said that not only have the senior management in Psychology supported her, but so to do very senior management in the Respondent Psychology Service and their sister child organisation department.
IMPACT said that having got the approval and support from her line manager to seek an upgrade the best management have offered is to direct her to a process that is not open to her.
IMPACT said that although the support of the entire management team, who have involvement in Psychiatry is welcome it rings very hollow in light of the fact that the Complainant is still paid as a Staff Grade Psychologist carrying out the duties of a Senior Grade Psychologist carrying out the duties of a Senior Psychologist. They said management in the Respondent accepted and have signed off on the fact that the post and role for the job is Senior Grade Psychologist, yet they still have not regularised the Complainant in line with her responsibilities and duties.
IMPACT referred to LCR 20862 in which they said the Labour Court has found that the agreed established rate for a job should be applied and IMPACT said the same should apply to the Complainant. IMPACT said there are also other WRC decisions where employees in the Respondent were upgraded and they submitted copies of some of these cases to the Hearing.
IMPACT said the Complainant has been refused the upgrade, even though she is carrying out the full duties and responsibilities of the job of a Senior Psychologist she is not paid as a Senior and she has been blocked from competing competitions.
IMPACT said that that this claim is unique in that the disadvantages the Complainant suffered were at a critical stage in her career, as a result of the Respondent changing the eligibility criteria for Senior Psychologists and not allowing her to compete for a Senior Psychology Post. IMPACT said that concession of the claim would not be setting a precedent as there are very few psychologists in this position. They said a pay increase is not been sought, nor is regrading, but rather simply to have the agreed established rate for the job the Complainant is doing applied to her. IMPACT said they are seeking on behalf of the Complainant that the agreed established rate for the job (Senior Psychologist) which she performs should be applied to her.
Summary of Respondent’s Case:
The Respondent said that the Complainant is currently employed by them as a Psychologist and she has held that position since March 2005.
The Respondent said the Complainant has made a complaint/claim to the WRC on 16th February 2017. In her Complainant Form the Complainant states that she is undertaking the role and responsibility of a Senior Psychologist with the pay or recognition for this.
The Respondent said that their Psychology Department in the named area is managed by a Psychology Manager who has responsibility across all divisions; Primary Care, Mental Health (including Child and Adolescent Mental Health) and Social Care. They said the Department currently has 15 employees, consisting of both Senior Psychologist and Psychologists and there are currently a number of vacancies within the Department, but none approved at Senior Psychologist Grade.
The Respondent’s records show that the Complainant covered a maternity leave starting in January 2015, for which she received a temporary assignment to Senior Psychologist covering a named catchment area and this temporary assignment concluded in January 2016. During this period the Complainant was paid at the Senior Psychologist rate/grade. The records further show the Complainant held a temporary assignment from May 2016 to September 2016 and again was paid at the Senior Psychologist rate/grade. The Respondent acknowledges that the Complainant continued to cover her substantive post while carrying out these temporary assignments.
The Respondent said they are of the understanding that the Complainant, at a minimum, applied for two Senior Psychological post but was precluded from the competitions due to eligibility conditions. That decision subsequently was overturned and the Complainant was successful at interview for the post of Senior Psychologist and was placed on a Panel.
The Respondent said that the current Public Service Agreement, The Lansdowne Road Agreement, provided for the reintroduction of the Job Evaluation Scheme with effect from the 1st June 2016. That process has commenced and a panel of trained evaluators are examining applications under this Scheme. The Respondent said that the Scheme is currently dealing with Clerical/Administrative Grades, but the Respondent anticipate that this Scheme will be extended across all grades and if the Complainant were to submit an application under the Job Evaluation Scheme, management would prioritise and fully support her through the process once the Scheme has been opened to this Grade.
The Respondent said that on 18th July 2016, the Chief Officer was formally informed that a decision was taken at the July National Performance Oversight Group (NPOG) Meeting on 6th July to escalate CHOR to Level 3 Escalation Red – NPOG Oversight in respect of Finance. Throughout 2016, Area 2 remained in Escalation Red and a significant number of posts were left unapproved and unfilled due the financial circumstances of the Organisation. In fact many posts in Primary Care were ‘lost’ to the system due to ongoing financial constraints and cost containment measures.
The Respondent said they are of the view that the issues raised by the Complainant are collective in nature as the issues apply to a National Grade of employees, i.e. Senior Psychologist as opposed to a singular employee and the collective issues being raised before the WRC should in fact be addressed by national negotiation in the context of the collective nature of the claim, which if conceded will have both cost and staffing implications across the wider Organisation.
The Respondent said that such increasing claims are precluded under the provisions of Public Service Agreements and the Public Service Stability Agreement; Section 8.3 of that Agreement was quoted by the Respondent in support of their position.
The Respondent said that while they fully acknowledge and appreciate the Complainant’s commitment and her willingness to take on additional duties and responsibilities as required by the Service, it remains a fact that there are currently no approved Senior Psychologist Grades across the Psychology Service.
Based on the foregoing the Respondent sought that their position be upheld and that the Complainant’s claim be rejected and that it be recommended that she utilise and use the Job Evaluation Scheme, when it is extended to cover her grade, to seek to progress her claim.
Recommendation:
Section 13 of the Industrial Relations Acts, 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 made to me and I have concluded as follows.
I note that the claim/complaint in the instant case is that the Complainant is not on the correct grade or pay rate for the work she performs; that the work she performs is appropriate to the grade of Senior Psychologist; i.e. that she is seeking the rate for the job that she performs. It is very well established by numerous Labour Court Determinations that such a claim is not a claim of a cost increasing nature prohibited by the terms of the various Public Sector Agreements, Croke Park, Lansdowne Road etc. It is further well established that it is not a claim for a pay increase in the normal sense, but rather is a claim that the individual worker is not on the correct rate of pay for the work they perform; equally it is not a collective issue as it is specific to the work performed by the individual clamant/complainant. The Respondent’s submissions in that respect are rejected by me.
I do not accept that it would be appropriate for this case to be dealt with by way of the Job Evaluation Scheme (JES) as firstly the Complainant’s Job Grade and the one she seeks is not covered by that Scheme, with absolutely no indication whatsoever when, if ever, it would be. Secondly, the claim is specific to the work the Complainant is doing (and not others) and that it is that of the higher Grade, Senior Psychologist, that is particular to the Complainant and does not require job evaluation to measure that work.
I am satisfied that it cannot be seriously disputed that the Complainant is and has been for some considerable time performing the work of Senior Psychologist. This is supported by her Job Description and more significantly is explicitly recognised by all of management in the Psychology Service Area, who undoubtedly are the people best placed to make such a judgement and who unanimously support her claim. In that respect I was presented with 8 letters from such managers who, without qualification, stated she performed the work of a Senior Psychologist and fully supported her claim to be graded accordingly. I find this evidence, which was not disputed by the Respondent, extremely persuasive and it is accepted in full by me.
Based on the foregoing I see considerable merit in the claim and it is upheld in full by me.
I recommend that the Complainant be regularised or upgraded to the Grade of Senior Psychologist with effect from the date the claim/complaint was presented to me, 16th February 2017.
For the removal of doubt 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 or used by either party or any other party in any other case.
I so recommend.
Dated: 8 August 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Key Words: Pay Grade and Pay Rate.