ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005680

Complaint for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath

Date of Adjudication Hearing: 07/02/2017

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with section 13 of the Industrial Relations Act, 1969 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

The Complainant was employed as a clerical officer from the 6^th of January 1997. She retired from her employment on the 28^th of April, 2016. She alleges that during the moratorium she assumed a significant range of higher level duties which were never recognised by the Respondent. She alleges that she should have been put on the appropriate grading and remuneration for carrying out these higher level duties. She tried to resolve the matter with the Respondent without success. She filed a complaint with the Workplace Relations Commission on the 26^th of October, 2016.

Complainant’s Submission:

The following is a summary of the Complainant’s submission;

The Complainant was employed by the Respondent from 1997 to her retirement in July 2016. She held a post of Grade III Clerical Officer. In January 2011 she was directed by the General Manager at the time (MK) to relocate to the Office of General Manager and assume a role previously held by a Grade V officer who had transferred to another area in the organisation. She complied with this request and carried out the duties of a Grade V level post. From that time up to her retirement she continued to fulfil the obligations and duties of both a Grade III post and a Grade V post which had been vacated. In December 2015, she requested to be considered for ‘Regularisation’ for her post under HR Circular 17/2013. Her application was refused. The refusal was confirmed by the Respondent by letter of the 19^th of February 2016. She was also denied the access to appeal the decision on the grounds that she was out of time to make an application under 17/13.

Union Argument

There are many cases within the organisation whereby workers have been rewarded by way of Grade adjustment, dual responsibility allowance, acting allowance without reference to the process of regularisation and the Complainant should have and could have been treated in this way.

There are also examples of cases where the adjudication service has retrospectively awarded dual responsibility allowances where it was clear that the worker was carrying out a dual role. This option was also open to the Respondent.

There has been little consistency in how the Respondent addressed the overall problem of grade recognition- with approval for upgrades in some cases and refusal in others. This inequity is the greatest source of frustration for workers. The introduction of temporary higher level contracts and the reopening of the job evaluation scheme, if applied consistently would iron out such an inequity. The job evaluation scheme, however, could not be presented as an option as it has only recently re-opened despite its re-opening being part of the Lansdowne Road agreement.

There was never a formal response to the Union’s claim that the Complainant carried out several named higher level duties. An informal assertion that the Complainant did not carry out the duties can neither be accepted nor relied upon. As a minimum, if the Respondent was of the view that the Complainant was not discharging higher level duties as claimed, it could have stated those grounds in its refusal of her application for ‘Regularisation’.

Despite the time-bound parameters set out in Circular 17/13, many late appeals were accepted (with successful outcomes). The Respondent had no will to look at a solution in relation to the Complainant’s case.

Conclusion:

The effect of a moratorium on recruitment throws up many scenarios similar to the case of the Complainant, but few are as clear and obvious, as there was clearly a vacant Grade V level post which she was directed to cover. The Respondent has shown no willingness to recognise this fact and it has used inconsistent approach in resolving such issues. On the basis of the points raised, the union requests that the Complainant be appropriately compensated for the wrong that was done.

Respondent’s Submission:

The following is a summary of the Respondent’s submission:

The case before the adjudication officer is a claim for ‘Regularisation’ at a higher Grade by the Complainant under Section 13 of the industrial Relations Act, 1969.

The Complainant was employed as a clerical officer- Grade III with effect from the 6th of January, 1997. The Complainant retired on the 28^th of April 2016 in accordance with her contract of employment as she reached the mandatory retirement age. On the 5^th of November 2015, the Complainant made an application to be ‘Regularised’ under the provisions of HR Circular 17/2013.

Circular 17/2013 recorded the agreement reached with the union regarding ‘Regularisation’ for those staff who had been acting in a higher capacity on a continuous basis for at least two years at the 31^st of December 2012.

Management who believe that staff were comprehended by the circular were required to submit business cases signed by the appropriate line manager, Assistant National Director and National Director.

Applications in respect of her location were dealt with by the General Manager of her location in the first instance. 20 applications for ‘Regularisations’ at the location were approved under Circular 17/13. The Complainant would have been included in this process if eligible to be comprehended in the process.

Local Management responded to the claim on the 12^th of November 2015, requesting the Complainant to submit the business case to support her application for ‘Regularisation’. The Complainant provided the information requested.

The documentation received is not in line with the normal application process. The location manager disputes the Grade V job description submitted by the Complainant listing duties undertaken. Following the redeployment of the Grade V the roles and responsibilities undertook by the Grade V were reassigned to either Grade IV or members of senior management team as indicated.

The Manager having reviewed the documentation and established the facts in respect of the contents of the Complainant’s submission, responded to the Complainant on the 26^th of January 2016 rejecting her claim.

On the 3^rd of February 2016, the Complainant’s union representative wrote to appeal the decision.

The Assistant National Director of HR respondent to the union on the 19^th of February 2016, confirming that the Complainant’s claim for ‘Regularisation’ under Circular 17/13 had not been approved and enclosed the memorandum which advised that the deadline for application was the 30^th of June 2014 and enclosed the memorandum in respect of the appeal mechanism previously agreed by the union and the Respondent with a closing date of the 21^st of August 2015.

The Complainant’s representative issued a letter to his member on the 15^th of March 2016, attaching a copy of the response received from HR and confirmed “that the closing dates for applying for ‘Regularisation’ and appealing against a refusal are correct.”

On the 19^th of August 2016, the union wrote to HR requesting a review of the Complainant’s claim for ‘Regularisation’ on the grounds that Duties of the Grade V were transferred to the Complainant. HR on the 8^th September 2016, requested local management to review the contents of the Union’s letter dated the 19^th of August 2016 and local management advised that the duties outlined were carried out as part of the Clerical Officer Grade III duties as personal assistant to the director.

Subsequently the matter was referred to the Workplace Relations Commission.

Management Position:

The application is out of time and did not comply with HR circular 017/2013.

The Complainant was a Grade III providing PA / Clerical support to the Director. The Complainant was not carrying out the role/function of the Grade V officer.

When the Grade V post was put in place in the General Manager’s office, the team comprised of the Grade V and Grade IV. The director was supported by one clerical officer- Grade III (the Complainant). Management was further supported by a clerical officer – Grade III, who also provided support as required to cover absences in the General Manager’s Office as necessary.

When the Grade V was reassigned within the location, the Grade V duties were reassigned to the Grade IV and members of senior management.

At this time the complainant was requested to move office and continued to carry out her normal duties, i.e. the full range of PA / Clerical Support duties to the Director.

Following the move the Complainant shared an office with a Grade IV, to provide clerical support to the General Manager when members of his team were not available (to answer phones and provide urgent support if required).

Management disputes the Complainant’s claim (5^th of January 2015) that in January 2011 she was directed by the Genera Manager to assume the Grade V post. The Complainant’s duties remained PA / Clerical Support to the Director. This arrangement was confirmed by the location manager (26^th of January 2016).

Conclusion:

The Complainant retired on the 26^th of April 2016 and is not comprehended by HR Circular 017/2013 as the Complainant was not in an acting position nor was she carrying out the duties of a higher Grade (Grade V officer), prior to her retirement on the 28^th of April 2016.

Findings:

1. ^th of November 2015. Her application was outside the time limit as the deadline was the 30^th of June 2014.

The appeal deadline had a closing date of the 21^st of August 2015.

2. ^th of August 2016 the Union Representative wrote to the Respondent requesting a review of the Complainant’s claim for a higher grade on the grounds that she was carrying out many of the duties previously carried out by a Grade V officer.

The Respondent carried out a review as requested and advised the Complainant that the outcome of the review showed that the duties carried out by the Complainant were part of the Clerical Officer Grade III duties as personal assistant to the Director of Nursing. The Respondent advised at the hearing that the previous duties of the Grade V officer was distributed between the Grade IV officer and the senior managers. A detailed analysis of how the duties were distributed was outlined at the hearing.

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.

Based on the evidence presented by both parties at the hearing, I find that this complaint is not well-founded and therefore fails.

Dated:   9^th May 2017