ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00004433
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-00006151-001 | 27th July 2016 |
Date of Adjudication Hearing: 6th December 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 and following the referral of the complaint to me by the Director General, 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: . SIPTU were in dispute with the Respondent in relation to the appropriate pay grade or rate for the Complainant.
Summary of Trade Union Case:
In 2004 I was appointed to Central Services Sterile Department (CSSD) manager in a named Hospital. As there is no payscale for this grade I was aligned to Clerical Officer Grade resulting in my pay being well below other CSSD managers across the country who are aligned to CNM2 payscales or above. In 2007, another named Hospital CSSD closed and the extra responsibility of the decontamination transportation and managing of reusable invasive medical devices were given to me. In March 2014 I was approached by local management and I agreed to take on extra responsibility and tasks by taking on the management of Endoscopy Decontamination Services and staff in both hospitals. In November 2014 the post was advertised for Clinical Decontamination Coordinator which I applied for and was successful and in February 2015 I received a specific purpose contract that was backdated to 8th December 2015. In June 2015 I received a permanent contract for the post and have been carrying out the role since then. I accepted the post of Clinical Decontamination Coordinator at a pay scale of that of Clerical Officer Grade 6 and since then I have discovered that all other colleagues carrying out this role or a similar role are being paid at at higher rate of pay than me. My complaint is twofold; (1) I am seeking a pay increase/upgrading equivalent to that of a CNM 2; (2) I am seeking retrospective pay at the upgraded pay rate for my role acting in this post from March 2014 to my appointment on 8 December 2014. I have provided my employer with 30 examples of colleagues working in similar roles throughout the Organisation who are predominantly paid at the equivalent rate of a CNM2 or higher and yet my employer has failed to recognise this. I have exhausted all internal grievance procedures. |
SIPTU said the Complainant has been employed by the Respondent since 1972, and that in 2004 she was appointed as Manager to Central Services Sterile Department (CSSD) in a named Hospital. SIPTU said as there is no payscale for this grade within the Respondent, the Complainant’s pay was aligned to that of Clerical Officer Grade 5. In 2007 another named Hospital’s CSSD closed and the extra responsibility for the decontamination transportation and managing resusable invasive medical devices was given to the Complainant. In March 2014, the Complainant was approached by local management and she agreed to take on extra responsibility and by taking on the management of Endoscopy Decontamination Services and staff in both hospitals.
In November 2014, the position of Clinical Decontamination Coordinator was advertised and following a competition the Complainant was successful in her application and secured the post. In February 2015, the Complainant received a Specific Purpose Contract that was backdated to 8th December 2014 and in June 2015 she received a permanent contract for the job.
As there is no recognised pay scale within the Respondent for the post the Complainant accepted a pay scale equivalent to that of Clerical Officer Grade 6.
However since taking up the post the Complainant has discovered that all of her other colleagues employed by the Respondent, who are carrying out the same job are all being paid at a higher grade pay than she is.
SIPTU said that the Complainant is seeking parity with her colleagues employed by the Respondent and performing the same work as her and who are predominantly in receipt of pay equivalent to that of Clinical Nurse Manager 2 and one is paid a Clerical Officer Grade 7 and the Complainant is seeking to be paid retrospectively at the upgraded pay rate while she carried out the role of CDC from March 2014 to her official appointment on 8th December 2014
SIPTU said that Complainant contends that she should be paid at least at the CNM2 rate of pay for performing the role and work that she performs. She said the role she performs carries a lot more responsibilities that that of a Clerical Officer Grade 6, because of the nature of the work she carries out and the responsibilities involved.
The Complainant submitted a detailed list of 29 locations where others were carrying out similar work and said it can be seen the majority are paid at CNM2 Grade, with some at Non Nursing Grade 7 and some a CNM3 rates. Currently the Complainant is on Point 5 of the Clerical Officer Grade 6 Pay Scale of €51,295 per annum, she will move to the 6th Point of that Scale of €53,157 on 8th December 2016. SIPTU said the same point (6) of the CNM2 pay scale would pay €52,067, but with no Long Service Increments (LSI’) she would reach the top of that pay scale of €55,852 on 8th December 2017, which is more beneficial to her prior to her retirement on 10th October 2020.
SIPTU said that in relation to the retrospective element of this claim the Complainant had a legitimate expectation to be backdated to 1st March 2014 and she had been informed and assured by senior management at that time that she would be paid back to March 2014, from when she took on the position of Acting CDC at their request until officially appointed on 8th December 2014.
SIPTU said that the Complainant is also seeking compensation for the delay in dealing with her grievance, which took almost 6 months to conclude, and for the distress this has caused her.
SIPTU and the Complainant sought a favourable recommendation.
Summary of Respondent’s Position:
The Respondent sought that the claim be rejected.
The Respondent said the Complainant commenced employment with them in April 1979 and that in September 2004 she was appointed as Manager of the Clinical Sterile Services Decontamination (CSSD) Department and she was paid at a Grade 5 salary. In July 2014, a decision was taken to have the post of CCSD Manager upgraded to a Clinical Decontamination Coordinator post. This was a post at Grade 6 level and was to be filled through a confined competition within the Hospital Group.
The Complainant was appointed on a temporary basis to the position in December 2014, pending the filling of the post on a permanent basis. Following the confined competition the Complainant was offered and accepted the job and she was appointed effective from 12th May at the 5th Point of the Grade 6 Salary Scale. Her next increment date was set for 12th May 2018 as it is an LSI (Long Service Increment) and is applied after 3 years at the maximum of the scale.
The Complainant made a formal complaint under the Grievance Procedure on 21st January 2016 in respect of her current pay rate and also looking for retrospective pay for the period from 1st March 2014 to 8th December 2014, she had received a Specified Purpose Contract for the job of Clinical Decontamination Coordinater.
These complaint were heard under all stages of the Grievance Procedure and none of them were upheld. The Respondent said the Stage 2 Grievance Decision took into account the Labour Court Recommendation, LCR 21 104 and changed her increment date to 8th December 2017.
The Respondent said that in order to fill a position local management must first seek approval stating the need for the post. No recruitment process can begin without getting approval for fill a post. The post of Clinical Decontamination Coordinator was approved for filling on 28th July 2014.
The Respondent said that the Complainant had her grievance heard at all stages of the Grievance Process and there was an adjustment made to her increment date based on Labour Court Recommendation LCR21104. The Respondent said that it was clear from the Stage 3 Grievance Hearing and the discussions that took place at that Hearing that this did not suit the Complainant as she would be retired shortly before she would become entitled to the 2nd LSI.
The Respondent said the post was approved at Grade 6 Level and this was what was advertised and it is what the Complainant applied for and was appointed to. The Respondent said it is unfortunate that the increment dates do not suit the Complainant’s retirement dates. The Respondent said it is inevitable that appointment dates do not always suit in terms of projected retirement dates, the Respondent cannot base appointment dates of projected retirement dates.
The Respondent said that there is no mechanism whereby the Complainant can be appointed to the position she holds prior to her appointment of 8th December 2014. This appointment was made following on from a competitive process. To appoint her to a position prior to this process would undermine the validity of the recruitment process and it would also leave open the possibility that other employees would seek to have their appointment dates amended to suit their retirement dates.
The Respondent said that the Complainant may claim that she should have been appointed at a higher grade and salary than that of Grade 6, and she has quoted examples of other employees in similar roles that are paid at a CNM2 level. However the salary scale for the post was clearly set out in the advertisement for the post. The post was advertised as and was sanctioned at a Grade 6 level and it is not within the gift of management to make an appointment at a higher level than that for which it had been granted approval.
The Respondent said that the Complainant was appointed on 8th December 2014, following a competition and this is the date the Respondent must use in deciding on increment dates.
The Respondent said it is not possible to upgrade the Complainant’s salary to that of CNM2 as the job was advertised as Grade 6 and that is what the Complainant applied for and was appointed to.
Based on the foregoing the Respondent sought that their position be upheld and the claim be rejected.
Findings and Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Act 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 and I have concluded as follows.
I note that I was informed at the Hearing that the Job Evaluation Scheme/Process within the Respondent Employment is once again operational (it had been suspended for a considerable period). It should be noted that this was not the case when the claim was presented to the WRC.
I do not consider it to be appropriate for me to be considering whether or not the Complainant is on the correct pay grade for the work performed by her in circumstances where there is a process in place (Job Evaluation) within the employment for deciding such issues.
I recommend that the Complainant’s dispute in relation to her pay grade be referred to Job Evaluation immediately, and I further recommend that in all the circumstances her case be prioritised for that process.
Dated: 23rd March 2017