ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003092

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 12/10/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant submits that she was employed as a lecturer above the bar on a permanent fixed term contract from March 2005 until August 2007. From September 2007 she was appointed to a half time permanent position as lecturer below the bar and also continued her lecturer above the bar fixed term contract on a halt time basis (eventually reaching the fifth point of the scale) until August 2011. The latter element of her contract ceased at that point and the lecturer below the bar contract was upgraded to permanent full time until December 2015. She was then progressed to lecturer above the bar and placed on the first point of that scale. It is asserted that it was manifestly unfair that her 6.5 years of previous service as lecturer above the bar was not accounted as it relates to her incremental placement having regard to the respondent’s own guidelines on incremental placings. In this regard the respondent distinguishes between appointment and progression into the position and drew attention to a “draft ‘Procedure for Progression from Lecturer (below bar) to Lecturer (above bar)’ (April 2016), which provides at para 5.8 that, in the case of successful progression, placement ‘will be at first point’.” No procedure existed hitherto and pre-dated the complainant’s permanent employment as lecturer above the bar. In any event the procedure takes no account of the complainant’s highly anomalous situation and leaves her in the absurd position where she now earns less than she did in 2007.

Respondent’s Submission and Presentation:

The respondent submits that it is bound by its progression practice while acknowledging the unusual circumstances presented in this particular case. Incremental credit may only be considered as it relates to the recruitment process and the complainant progressed rather than competed through a recruitment initiative.

Decision:

I note that the respondent acknowledges the unusual circumstances presented here and refers to the fact that its own procedures are a constraining factor. There are no material differences between the parties as it relates to the facts of this case. I agree with the view of the complainant that this case highlights a gap in the abovementioned” Procedure for Progression….”, albeit relating to most unusual circumstances.

I would exhort the parties to move to remove the gap by engaging at an institutional level.

Noting the continuous nature of the complainant’s employment and accepting that a gap in the procedure exists, I recommend that her previous service in role be recognised for the purpose of assimilation and compensated on the basis of an additional three incremental points from December 2015 without precedent. In other words her assimilation at that point would be on the basis of placement at point 4 of the relevant salary scale.

Dated:   15^th February 2017