ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00004718

Dispute for Resolution:

Date of Adjudication Hearing: 20th January 2017

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 dispute 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 dispute.

Background:

SIPTU were in dispute with the Respondent in relation to the Complainant’s rate of pay when providing cover for the Storeperson Post.

Summary of Trade Union Case:

SIPTU said they were seeking payment of the Band 2 rate of pay for the Complainant for the periods he covers the Band 2 Storeman Post, both in the past and in the future.

SIPTU said that the Complainant has been employed by the Respondent based at a named Hospital, since 1^st January 2000.   SIPTU said the Complainant is a Catering Attendant which is paid at Band 4 of the Respondent Salary Scale; he receives this rate of pay for his normal duties and has at this stage reached the top point of this Scale.

SIPTU said that however the Complainant is required to provide cover for the Storeman during periods of absence due to annual leave, sickness etc etc.   SIPTU said the Storeman is paid at the higher rate of Band 2 of the Respondent Salary Scale and when the Complainant is carrying out cover for this post he receives the in-between rate of Band 3.

SIPTU said the Complainant is seeking to be paid the rate that the Respondent pays the Storeman for any periods he is covering this job.

SIPTU said the Complainant has provided cover for the Storeman at the Hospital where the Complainant and the Storeman work.   SIPTU said the Complainant was asked by management at the Hospital to provide cover in order to ensure continuity during periods when the Storeman was absent due to holidays or illness or any other reason.   In such periods he was paid at the Band 3 Rate, which is the next level up from his Catering Attendant Pay Rate at Band 4 Rate.  

SIPTU said that in May 2015, the Complainant became aware of the fact that the Storeman’s rate of pay had increased from Band 3 to Band 2.   The Complainant raised a grievance of 21^st May 2015, with the (named) Services Manager and he referred to his expectation of retrospective pay of arrears due from the date he commenced in this post.   SIPTU said that while initially the Services Manager made arrangements to check the periods of cover provided by the Complainant (and he met with the Salaries Department to agree detail of cover) she later rejected the grievance stating that the Band 2 Rate paid to the Storeman was based on an agreement reached with him on a individual basis and that this was now on a ‘personal to holder’ basis.     SIPTU contacted the Services Manager in relation to the matter on 1^st December 2016.

SIPTU said that a Meeting took place with 2 named managers on 29^th July 2016, but no agreement could be reached and it was agreed that the matter would be referred to the WRC.

SIPTU said that with reference to the position of management there were indeed previous successful claims for re-grading in 2001 and 2012, when it was accepted by all parties that this role had expanded substantially and as a consequences was worthy of a pay increase of £35 per week.     SIPTU said that more recently, in 2013, the current Storeman was regularised to Point 9 of the Band 2 Salary Scale, which encompassed all of the additional payments received since 2001 and was retrospective to 2013.

SIPTU said that as it stands the Storeman salary at the Hospital where the Complainant works is now Band 2 and when cover is required and the duties associated with this role are carried out, the cover rate must be that which is now paid to the current full-time incumbent of the post.

SIPTU said that the Complainant is providing the Respondent with continuity when required in this very responsible post, it is unfair that he should be paid less for carrying out this work than his colleague.

SIPTU said they were seeking a favourable decision that settles this matter for the future and that recognises that the Complainant should have been paid at this Band 2 Rate from the time he commenced providing this cover in March 2014.

SIPTU submitted two Rights Commissioner Recommendations relevant to the matter and which they said supported their position (IR 2122/01/TB and R-119214-ir-12/EOS refers).

SIPTU said that these 2 rights commissioners’ recommendations and the facts of the matter plainly and clearly demonstrated that the arrangement with the Storeman was not a ‘red circled’ or ‘personal to holder’ one as asserted by the Respondent, but rather was the rate of to job and accordingly it should apply to anyone performing that job including the Complainant.

Summary of Respondent’s Position:

The Respondent was contesting and denying the claim.

The Respondent said that since 1^st October 2013 and on a red-circled basis arising from a Rights Commissioner Recommendation a personalised allowance on an individualised basis was applied to the Storeperson with whom the Complainant is seeking parity when performing that role.

The Respondent said that arising from a Rights Commissioner Recommendation in 2001 the Respondent was directed to apply a personalised allowance to the Storepserson.

The Respondent said that the Storeperson remained on this personalised red circled rate of pay until such time as agreement could be reached nationally on the regrading rebranding (red circle).

The Respondent said while the rebranding issue was still being dealt with nationally, the area in which the Complainant and the Storeperson worked locally agreed to apply Band 3 to the Storeperson following discussion with the appropriate national body.   The Respondent said it should be noted the national position remains that Band 4 is paid to storepersons.

The Respondent said that subsequently the Storeperson took a successful case to the Rights Commissioner Service to retain the personalised red circled allowance from the 2001 Rights Commissioner Service.

The Respondent said that the subsequent Rights Commissioner Recommendation and the payment of the personalised allowance then became subject to the Respondent’s Regularisation of Acting Up Allowances and accordingly, under this National Process, a decision was directed to the local management to regularise the Respondent’s personalised rate of pay and the Band 2 rate of pay was to be applied to the Storeperson from 1^st October 2013.

The Respondent said that in relation to the Complainant his substantive post was that of Catering Attendant, Band 4.

The Respondent said that the Complainant was temporarily assigned to cover for the Storeperson while that person was absent on leave or for whatever reason.

The Respondent said that the Complainant is paid at the Band 3 rate for periods of such temporary assignment as collectively agreed with the trade unions in 2007.   The Respondent said that this is the rate for such assignments, as collectively agreed with the trade unions in 2007

The Respondent said that the Complainant is correctly being paid at Band 3 rate for such temporary assignments as agreed.

The Respondent said the rate being sought by the Complainant is a ‘personal to holder’ and ‘red circled’ rate.   The Respondent said that in effect the Complainant was attempting to ‘leapfrog’ on to a historical case that was particular to the individual Storeperson involved.   The Respondent said that claim was not well founded.

For all of the reasons outlined in the foregoing the Respondent sought that their position be upheld and that the complaint be rejected.

Findings and Recommendation:

Section 41(4) 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.

The Respondent states that the Rate of pay applied to the Storeperson which the Complainant seeks when providing cover for that Storeperson was based on two separate rights commissioner recommendations had no application to the Complainant as it was ‘red circled’ personal to holder and applied on an individualised basis.

I can see no evidence to support such a contention.   Both parties agree that the rate applied to the Storeperson in question’s pay was based on two separate rights commissioner recommendations namely: IR212122/01/TB of 25^th May 2001 and r-119214-ir-12/EOS of 18^th July 2012.     These recommendation provide: (I do not name the parties in these quotes)

1. ^th May 2001 provides:

Recommendation                                                                                                                                            . The difference in pay in the grade sought for …. and his current pay is £100 per week.   As it is agreed by both parties that his job content has expanded to the extent of 35% and also recognising his unique role regarding responsibility for meat intake and temperature control.

I recommend that pending the outcome of the review….. rate of pay be increased by £35 per week effective from the 1^st September 2000.”

2. ^th July 2012 provides:

Recommendation                                                                                                                                           .. . On the basis of the evidence presented at the hearing, I am satisfied that the complaint is well founded.   I recommend in full and final settlement of this dispute that the … assimilate the Claimant onto the second last point of the Band 3 Scale with effect from 4^th June 2012 and that the Claimant continue to be in receipt of the additional allowance previously recommended by a Rights Commissioner.”

I note that both of these rights commissioner recommendations were accepted in full by both parties and were implemented in full.

I note that nowhere in these two recommendations is it stated, suggested or implied that the outcome of these recommendations was ‘personal to that Claimant’, ‘red circled to that Claimant’, or ‘individual to that Claimant’

In the first recommendation, it is stated as a basis for the favourable recommendation that it is agreed by both parties that “his job content has expanded to the extent of 35% and also recognising his unique role regarding responsibility for meat intake and temperature control.”   This is clearly stating that the reason for the favourable recommendation is the expansion of the work content in the job and the unique responsibility taken on in the role by the Storeperson and I note that it is not in dispute that the Complainant performs all elements of the job including those referred to above. Nor is there any suggestion in the second recommendation that that recommendation is unique or particular to that Claimant.

It is to be expected and it is normal practice in recommendations under the Industrial Relations Act, that if the recommendation is intended to be ‘red circled’ to or personal to or unique to that particular Claimant then that fact would be stated in the Recommendation, e.g. by statements such as “This recommendation is particular to the unique facts and circumstances of the instant case and will not be used or quoted by either party in any other case”, but that is not the case in either of these recommendations.   Indeed I note that based on the submissions of the Respondent to the rights commissioners’ contained in the recommendations it appears that the Respondent never sought to have any recommendation confined to that Claimant.

I note that nowhere in these two recommendations is it stated, suggested or implied that the outcome of these recommendations was ‘person to that Claimant’, ‘red circled to that Claimant’ or individual to that Claimant.

I have concluded that the rate of pay paid to the Storeperson at the Complainant’s place of work is the established rate for that job at that workplace.   I have further concluded that based on the generally accepted principle that a worker when performing a job is entitled to be paid the established rate for that job, the Complainant is entitled to be paid the same rate as that paid to the Storeperson at his place of work when he is performing that job.

Based on the foregoing I see merit in the complaint and it is upheld.    

Notwithstanding the foregoing I accept that in the current financial situation if would present a genuine problem to the Respondent to have to pay arrears for almost 3 years.

I recommend that, as a full and final settlement of the dispute that with effect from 1^st January 2016 the Respondent pay the Complainant the same rate of pay as that which applies to the Storeperson at his place of work when he works providing cover for the Storeperson.

I so recommend.

Seán Reilly, Adjudication Officer      

Dated:   2^nd March 2017