ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002057

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

Date of Adjudication Hearing: 05/10/2016

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

Background

This case concerns a long-standing claim by the claimant for an upgrade from his existing RO-grade to a higher grade of SRO within the organisation. It was submitted on behalf of the claimant that he was reassigned as a Commercialisation Specialist (CS) in April 2007. And that the correct grading and associated pay scale for this position has never been applied. The position of CS has never been advertised at any grade other than Senior Scientific Officer (SSO) in the claimant's group and the respondent has never been able to challenge this assertion. It was stated that in a group of 12 CS’s only the claimant and another person was on the lower pay scale of SO. It was further submitted that 3 other employees joined the group after the claimant was reassigned and they did so at the SSO pay scale. The claimant is performing the same role as his peers who are on the SSO pay scale and it was stated that it is reasonable and appropriate that he (claimant) should be placed on point nine of the SSO pay scale, retrospectively applied from 2007

The respondent submitted that they must be cognitive of existing procedures, custom, and practices in respect of promotions and upgrades. The only mechanism for recruitment upward any grade within the agency is by way of “open recruitment Competition”. The respondent was obliged to abide by the conditions of the public sector recruitment moratorium and other decisions of the Government relating to employment numbers within the public sector. The Labour Court has upheld this view in a similar case which followed recommendations from Rights Commissioners. Both parties attended an LRC and the agreement reached was that individual staff members would record their current duties and responsibilities through meetings with Senior Managers and HR. This information was recorded in correspondence on their personnel files

Findings

Both parties made written and verbal submissions at the hearing.

Both parties requested time to engage with the possibility of finding a solution.

I find that additional documentation was submitted on the 30th November and agreement was not reached between the parties.

I find in the documentation submitted by the respondent that the claimant took identical claims to the Rights Commissioner Service in r-114352-ir-11 and r-079745-ir-09.

I find that the Labour Court issued recommendations in both cases.

Section 13 of the Industrial Relations Act 1969

(2).         Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3)    (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

1. make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii)              notify the Court of the recommendation.

       (b)   A rights commissioner shall not investigate a trade dispute—

(i)               if the Court has made a recommendation in relation to the dispute, or

1. if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commission

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the Labour Court has issued recommendations and under section 13 (3) (b) I have no jurisdiction to hear the complaint.

Jim O Connell

Adjudicating Officer

DATE: 31st January 2017