ADJ-00005797

Complainant

Respondent

Anonymised Parties

A Finance Employee

A Third Level Institution

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-00007988-001

04/11/2016

The complainant is working at a College in a Finance Role since 2014 at a grade 5.   He claims that he was placed on the lowest point of the Grade 5 salary scale when he was hired but that recognition should have been given to amongst other things, his previous experience to allow him be placed on a higher point of the scale at hiring.

The complainant was offered a Finance role at a Grade 5 level commencing on 8^th September 2014. Before he started, he raised the issues of his starting pay with the respondent who replied that, “as a new entrant to the public sector post-January 2011, you have been placed on the New Entrant Scale as per Department of Education guidelines”.   No discussions were entered into by the respondent regarding his concerns.

It was argued that owing to the complainant having 5 years managerial experience in a complex financial environment at a senior level and demonstrating staff management experience, he should have been placed on a higher level of the scale than the new entrant scale.

It was claimed that the following appointments were made at a higher point of the incremental scale, based on information secured under an FOI request:

77% (36/47) of appointments to Grade 5 between January 2006 – December 2010

53% (24/45) of appointments to Grade 5 between January 2011 - May 2015

23% (6/26) of external appointments to Grade 5 up to November 2016

and that on this basis the complainant should receive incremental credit for relevant recognised service with retrospection to 10 September 2014. The complainant has been precluded from raising a ‘grievance’ as it is characterised by the College as an “industrial relations” claim as per the respondent’s letter dated 15 May 2014.

The respondent stated that it has followed the circular issued by the Department of Finance dated 23^rd December 2010 (E100/8/82) regarding new hires being place on the starting point of the scale and that they are unclear as to what point of the scale the complainant’s claim is for. They argued that they did not know of any justifiable reason as to why he would be excluded from being placed on the starting point of the scale. That aside they are required to follow the circular and while there may have been occasions where this was deviated from at the College, it would have been in exceptional circumstances and prior to employees coming on board e.g. where it was difficult to fill a role which did not apply in the case of the complainant.

During the hearing the respondent requested time to respond to the information received under FOI by SIPTU regarding 6 others who had been placed at a higher point of the scale upon commencement of employment post 2011.   After the hearing the respondent replied that there had been an error in the information issued to SIPTU and that there was in fact only 2 individuals who were placed at a higher point of the scale and that they were placed on a higher point of the scale owing to difficulties in filling their posts. SIPTU responded in a letter dated 8^th February 2017 stating that this supports their contention that, “the practice of considering incremental credit for appointees to administrative posts existed before January 2011 and has continued since then”. 

The respondent has stated that they do not know what point of the scale that the complainant was seeking and I am somewhat surprised that the complainant has been precluded from raising a grievance prior to both parties appearance at this hearing. It is rather alarming that a letter of 15^th May 2014 from the HR Manager to SIPTU details that such queries “are not grievances in the normal sense” and that “it is not appropriate to seek to have a line manager hear a particular issue and reach a conclusion”. This letter also states further on that the respondent “is more than willing to hear the grievances which relate to matters which can be adjudicated internally” but in other matters “it is not appropriate to raise them under the grievance procedure”. This approach seems at odds with S.I. No. 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures.

“While arrangements for handling … grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance ….issues”

Complaints under this Act should be raised and exhausted at local level through the company grievance procedure.  I find in this case that this did not occur.   As outlined to both parties at the Hearing, The Workplace Relations Commission should not be the first port of call when a person has a grievance under the Industrial Relations Act.          

I note in a Labour Court case INT1014 the Court stated they are “not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. However, the question arises as to where does an employee of the College go when they have a grievance such as this instant case and where the respondent say that they are “not grievances in the normal sense”?

Therefore, taking into consideration the unique circumstances of this claim, I recommend that:

Firstly, the respondent should agree a dispute resolution procedure that allows for the handling of all grievances at local level in the first instance. This will ensure their compliance with SI No 146 of S.I. No. 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures. 

I recommend that such a dispute resolution procedure be implemented within 42 days of this recommendation.    

Secondly, with regards to the complainant’s specific complaint, and based on the unique circumstances, I recommend that within 42 days of this recommendation, the methodology detailed in the respondent’s email, dated 22 October 2015, from the HR Manager should be applied to the complainant’s claim with regards to, at the time of hire, “seeing proof (of the then) ….salary and conditions” as well as taking into consideration, “difficulty to recruit and the skills of the successful candidate (at the time) in consultation with the line manager” to determine whether his claim should succeed.

I recommend that the College should agree a dispute resolution procedure that allows for the handling of all grievances at local level in the first instance. I recommend that this dispute resolution procedure should be agreed within 42 days of this recommendation.               

I also recommend, based on the unique circumstances of this case, that the complainant’s claim should be reviewed within 42 days of this recommendation using the methodology detailed in the respondent’s email, dated 22 October 2015, from the HR Manager with regards to, at the time of hire, “seeing proof (of the then) ….salary and conditions” as well as taking into consideration, “difficulty to recruit and the skills of the successful candidate (at the time) in consultation with the line manager” to determine whether his claim should succeed.

Incremental scale, industrial relations claim, dispute resolution procedures bypassed, third lev el institution