Complainant

Respondent

Anonymised Parties

A Home Support Worker

A Health Service

Representatives

IMPACT Trade Union

IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00010889-001

19/04/2017

The claimant began working as Home Support Worker /Family   Support Worker with the Respondents’ Regional autism service in October,   2007. She subsequently secured a   contract of indefinite duration for 25 hours a week .The Claimant has a dual   employment relationship as a Preschool Therapist for 11 hours per week. Her   dispute with her employer concerns the Home Support Worker contract alone.   The claimant is paid on the HSE Supervisor/Instructor pay scale (€26,601-40,911)   as of April 1, 2017,

The claimant is currently pursuing a BA in Applied Social Studies,   due for completion in June 2019.

In early 2016, the claimant learned from a colleague that   another more favourable pay scale was in use for Home Support workers within   the respondent employment. This was known as the HSE Senior Supervisor   /Instructor grade and stood at (€ 31,442-43,722) as April, 1,2017.

The Claimant had assumed that all 8 -10 Home Support   Workers were paid the same rate of pay, that of the Health Care Assistant Pay   scale.

The Union raised the matter of pay disharmony with the   Respondent and while engagement took place, agreement did not follow. The   Union submitted the names of two comparators who performed the exact same duties.   The Respondent disputed that the Claimants Fetac level 6 qualification was   not compatible with the comparators Fetac level 7.

The Union engaged further with the respondent seeking to   outline the seniority of the claimant’s role in pursuance of the identical   pay scale to others in the grade.

In October, 2016, the Respondent advertised for a Senior   Instructor where applicants were sought from:

Applicants currently   undertaking a relevant course at level 6 or above may be considered.

The parties met on 22 December 2016, where the Employer   confirmed that “there was no difference in the role carried out by the   claimant and other Home Support workers. The October post was deemed to   belong to another aspect of service delivery and not comparable by Employer.

The Union continued in seeking a local resolution and   while some progress was made on a proposed support package for her studies,   the issue of pay remained outstanding. The Employer was not able to accede to   the Union request that the claimant be paid on the correct scale on   completion of her studies. The matter was referred to the WRC on 19 April, 2017.

The Union submitted the following arguments for   consideration:

2 The Claimant replied to a published advertisement for the position of Family Support /Development Worker dated 19 October,2007 and secured the position by open competition, The Employer hired her in the knowledge of her level of qualifications. The Employer, now almost a decade later is seeking to retrospectively apply a higher threshold in this regard.

3 Another member of staff does not hold a level 7   qualification and yet receives the Senior pay scale. The Employer has made an   accommodation for her UK qualifications. The Claimant has applied her   qualifications to her role from the outset.

4 The Employer has not applied consistency across their   service in terms of criteria for the position of Senior Supervisor/Instructor.   The Union is not prepared to accept that a re-alignment of the claimant to   the senior pay scale would constitute a prohibited promotion.

5 The Union understands the trading position of the   employer and has sought to resolve the matter internally.

6 The Union expressed reservations that the employer was   now seeking to reduce the claimant’s responsibilities as a demotion, to justify   paying her less than her colleagues. This would be perceived as a punishment   and an erosion in service to service users.

The Union has identified that the Dispute could be   resolved by alignment of the claimant to the HSE Senior Supervisor   /Instructor grade (Specialist Agencies) with immediate effect with full   retrospection to October 2007

The Employer rejected the claim. he Employer submitted   that the claimant is employed as a part Time Home Support Worker on a Basic Instructor   scale and she has been given opportunities to develop, excel and grow   professionally by taking on additional tasks at her request.

The Employer provides support for children and adults with   Intellectual disability and autism in the South of Ireland on behalf of a   Public Body. This is done by Service level agreement (SLA). The Employer also   runs a team who provide assessment and intervention services to children with   Autism.

The Claimant commenced employment on 30 October, 2007 as a   part time Home Support Worker with regional autism services. She was placed   on the 4^th point of the Basic Instructor scale. She is currently   on the 11^th point of the scale and is paid €37,218 annually.

In April 2016, the claimant queried her grade with her   line manager. She was informed that promotional positions must be advertised   as an employee must have the required   qualifications to be considered for a post.

The Claimant followed up on 104 hrs available at Senior   Instructor level and was informed that these hours could only be taken up by   existing staff, with four years’ relevant experience who were qualified at   degree level in social care or equivalent.

The Union sought additional hours for the claimant on 14 July,   2016, the Employer received an email from the Union in follow up which   accepted that additional hours could be completed by an extension of the   substantive pay scale of the person who chose to take the hours.

The parties met at local level in February 2017, where the   Employer offered a support package for the claimants ongoing studies. The   Union requested that the claimant be automatically transferred to the Senior   Instructor pay scale.

The Employer responded and highlighted that fair process   must be applied to any promotional appointment within the service in line   with best practice a taking in the demands of the service funder.

The Employer advanced the following arguments in support   of their position.

1 The Employer operates in a highly-regulated sector,   where professional standards must be adhered to. There is a reasonable   requirement that nay member of staff appointed to the role of Senior   Instructor has a level 7 qualification. The Employer is subject to the   requirements of the Health Act 2004.

2 The Autism service grew quickly between 2004 and 2007.   There were opportunities for enthusiastic and good staff to develop and grow   within their roles. The Claimant was one of these employees. However, while   an excellent employee, her role for she is employed is that of Instructor level.   This does not have the same educational standards required as a Senior Instructor.   The Employer has determined that a level 7 qualification would be required   for the role of senior instructor. This is reflected in all job   advertisements and descriptions.

3 While the claimant has been given the opportunity to   take on additional tasks associated with the senior role, it has always been   with her agreement and for self-development. The Employer does not seek to   penalise an employee for giving them an opportunity to take on additional   responsibility.

4 The Claimant referred to a comparator who assumed he   role in 2006. This is a red circled arrangement. The Regulation governing the   current environment now stipulates that what determines a senior role is not   just experience but also professional educational standards. The Employer had   made reasonable offer to support the claimant in securing her level 7 qualification.

5 There is neither demand nor funding to create another   Senior Instructor role in the service currently. The claimant is paid the   salary which reflects the role she is employed in.

6 The Employer contended that the claim is cost increasing   and therefore prohibited under the Public Service Agreement which precludes   Trade Unions from making or processing cost increasing claims during the   currency of the agreement.

7 The Employer contended that the claim related to the   terms and conditions of a body of workers and argued that the Adjudicator   lacked jurisdiction.

8 The Employer has engaged with the claimant in seeking a   resolution to her claim. The Respondent has acknowledged he ambition,   commitment and hard work of the claimant. When the issue of pay came before   the employer, they sought to engage offering to decrease her responsibility   to ensure they accurately reflect her job description. On completion of her BA,   she would be eligible to apply for appropriate roles as advertised.

The Employer requested that the claim be rejected because the   claimant did not have the educational qualification pre-requisite for the   position of senior instructor and no funding was available for such an   alignment.

I have considered both parties stated positions in this case.   I accept both party’s submissions that the Autism services developed with haste,   commitment and vigour and the service users and their families were   prioritised for service. It has been a successful service.

However, this is a case of a claim for uniformity of pay   scale and I must consider the claim strictly within those limits. I must   start with an analysis of the claimant’s contract of employment.

The first contract I had sight of was a specified purpose   contract agreed by the parties in 2012 and approved by the employer on 20   September 2013. The lifespan of this contract referred to a three-month   period in 2011 and the Job title was marked as Home Support Worker paid on   the Care assistant scale. This was superseded by an offer of a contract of   indefinite duration dated 3 November, 2014, but effective from 23 September,   2012.The title of the position was Family Support Worker.

I note that the presiding advertisement, dated 19 October 2007,   which signalled the claimant’s arrival to work with the employer was   described as Family /Support /Development Worker Ref 83/07. I have   established that there was some inconsistency on the title of the position at   the centre of the claim between Family/Home Support and Development Worker. I   accept the party’s submissions on the rapid evolution of service as being at   the root cause of this, however, I found that it led to confusion.

The claimant was not paid as a Health Care Assistant as   set down in her contract of employment and was paid on the Supervisor   /Instructor scale for Specialised Agencies.

I could not establish the relevance of the Employers   arguments on the terms of Section 22 Health Act ,2004 being applicable to the   claimant, when it did not form an implied or express term of her contract of employment.   The Employer in this case is a registered charity, while the Health Act   refers to a Public body with a separate and distinct group of employees. I   note that the claimant is a member of a parallel pension scheme to that of   the Public Body. This confirms the distinction.

The Employer confirmed at hearing that despite efforts to   stream line the claimants position, that on the date of claim, there was no   material difference between her role and function and that of the Senior   Instructor grade. I understand that the pathway to the senior role may have   been varied and couched in historical convention, however, I must investigate   the claim in real time. In this, I am very much guided by the pronouncements   contained in the correspondence shared by the employer with the claimant on 25   May, 2016, where the role of Home Support Worker was stratified into two   parts.

1 An operational involvement with the individual children   and their families.

2 Incorporated (1) with an extra responsibility of   collaboration with the Multi-Disciplinary Team and delivering training programmes.

I note that the Employer confirmed that the claimant was   judged to be operating in the second sphere. This was re-affirmed at the hearing.

I appreciate that it cannot be my role to decide whether   the claimant merits a Senior Instructor for Specialised Agency position and commensurate   Pay scale. I have investigated the circumstances surrounding her pay   determination to ascertain whether her current situation can be deemed as   fair and reasonable? I find that I have jurisdiction to hear this case as it   does not incorporate a claim for the terms and conditions of a body of   workers.

In listening to both parties, I noted a certain lack of   transparency in the application of the pay scale in this case. It is very   important for high performance and staff morale alone that transparency is   readily identifiable in pay determination. The claimant was working in the   organisation for over 9 years before she informally discovered a layered pay   determination in the grade of Home Support Worker in 2016. A generic job   title suggests a generic pay scale and I was surprised to discover that this   was not the case.

I was struck by the Employers extensive argument on the   code of practice on recruitment in the Public Service, but once again, I saw   no reference to these terms in the contract of employment. I do, however   accept that the Employer is influenced by service level agreement with the   public funding body.

What is before me is a claim for alignment to the grade of   Senior Instructor for the work of a Home Support Worker. There are 7 people   currently doing this role, 3 of whom are senior and when one left they were   replaced by a Senior. This allows me to conclude that the Employer has   exercised considerable discretion in relation to the pay determination for   these positions. I have also heard that he claimant works in an   undifferentiated way to that of her Senior colleagues in the field of Home   Support Worker. This constitutes an anomaly in Industrial relations language.

I appreciate that the employer is reluctant to move to   resolve this anomaly in the claimants favour and has chosen to regard the   sole pathway to the Senior Instructor pay scale as through competition rather   than alignment. I cannot accept that the claimant’s educational   qualifications serve as a veritable bar to resolving this anomaly. The   Organisation has acknowledged that her role and function are comparable to   the other Senior Instructors/Home Support Workers.

The Employer did not submit evidence of their inability to   pay the differentiation in the two pay scales.

In St Patricks   College and IFUT LCR 20435, 2012, the Labour Court considered a very   similar context and background to a claim for regrading to an Assistant   Lecturer for a Tutor employed from 1992.

Both parties in the case agreed that the Applicant, though   classified as a Tutor had been consistently assigned and had undertaken the   full range of duties appropriate to the Assistant Lecturer level. He was paid   a “bespoke personal scale “The College relied on the Section 1.27 of the then   Crooke Park Agreement on cost increasing claims being prohibited.

I quote the following from the Courts Recommendation:

In the Courts view,   the difference between the form and substance of the Applicants contract of   employment is at issue here. The Worker is employed and paid as a Tutor but   is required to carry out the work of an Assistant Lecturer. In these   circumstances, the Court takes the view that the College cannot rely on the   formal terms of the contract to defeat the workers claim. Instead, the Court   finds that the Applicant is entitled to payment based on the work that he is   required to perform.

The Court went on to hold for the claimant stating that   prohibition of cost increasing claims cannot mean that a worker such as this   will be paid a rate of pay below the agreed and established rate for the work   he performs. that of Assistant Lecturer. The Court recommended that the   claimant be placed on the Assistant Lecturer scale with immediate effect.

In the instant case, there is no dispute that the claimant   works on par with her fellow Home Support Workers who receive the Senior   Instructor pay Scale. I am obliged to apply the considerations of the   precedent contained in St Patricks   College in that regard.

I have found a significant administrative lag in this case,   the claimant has clearly evolved into the role of the second strata of Home   Support Worker for which the employer pays a Senior Instructor/Home Support   Worker Pay scale. I cannot establish a fair or reasonable purpose for her   exclusion from this pay scale.

I find that the claimant has demonstrated a clear anomaly.   I recommend that the Employer aligns the pay and work of the claimant with   the established rate of pay for the job, that of Senior Instructor/Home   Support Worker and place her on the appropriate point of the Scale with   immediate effect in full and final settlement of the claim.

I have not found in favour of the claim for retrospection.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires   that I make a recommendation in relation to the dispute. I have found that   both parties made a concerted effort to resolve this Dispute. I acknowledge   that the claimant is held in high regard by the Employer. I also acknowledge   that the Employer is working across a broad service spectrum. However, this   must be underpinned by uniformity of approach.

I find that the   claimant has demonstrated a clear historical anomaly. I recommend that the   Employer aligns the pay and work of the claimant with the established rate of   pay for the job, that of Senior Instructor/Home Support Worker and places her   on the appropriate point of the Scale with immediate effect in full and final   settlement of the claim.

I have not found in favour of the claim for retrospection.

Uniformity in pay scales. Retrospection.

Complainant

Respondent

Parties

Sarah Keohane

Brothers of Charity Southern Services

Complainant

Respondent

Anonymised Parties

A Home Support Worker

A Health Service

Representatives

Linda Kelly IMPACT Trade Union

Clodagh Bergin IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010889-001

19/04/2017

The claimant began working as Home Support Worker /Family Support Worker with the Respondents’ Regional autism service in October, 2007. She subsequently secured a contract of indefinite duration for 25 hours a week .The Claimant has a dual employment relationship as a Preschool Therapist for 11 hours per week. Her dispute with her employer concerns the Home Support Worker contract alone. The claimant is paid on the HSE Supervisor/Instructor pay scale (€26,601-40,911) as of April 1, 2017,

The claimant is currently pursuing a BA in Applied Social Studies, due for completion in June 2019.

In early 2016, the claimant learned from a colleague that another more favourable pay scale was in use for Home Support workers within the respondent employment. This was known as the HSE Senior Supervisor /Instructor grade and stood at (€ 31,442-43,722) as April, 1,2017.

The Claimant had assumed that all 8 -10 Home Support Workers were paid the same rate of pay, that of the Health Care Assistant Pay scale.

The Union raised the matter of pay disharmony with the Respondent and while engagement took place, agreement did not follow. The Union submitted the names of two comparators who performed the exact same duties. The Respondent disputed that the Claimants Fetac level 6 qualification was not compatible with the comparators Fetac level 7.

The Union engaged further with the respondent seeking to outline the seniority of the claimant’s role in pursuance of the identical pay scale to others in the grade.

In October, 2016, the Respondent advertised for a Senior Instructor where applicants were sought from:

Applicants currently undertaking a relevant course at level 6 or above may be considered.

The parties met on 22 December 2016, where the Employer confirmed that “there was no difference in the role carried out by the claimant and other Home Support workers. The October post was deemed to belong to another aspect of service delivery and not comparable by Employer.

The Union continued in seeking a local resolution and while some progress was made on a proposed support package for her studies, the issue of pay remained outstanding. The Employer was not able to accede to the Union request that the claimant be paid on the correct scale on completion of her studies. The matter was referred to the WRC on 19 April, 2017.

The Union submitted the following arguments for consideration:

1. The claimant has been underpaid for a 10 year period and carries out the identical duties and responsibilities to her colleagues, who are in receipt of a higher rate of pay.

2 The Claimant replied to a published advertisement for the position of Family Support /Development Worker dated 19 October,2007 and secured the position by open competition, The Employer hired her in the knowledge of her level of qualifications. The Employer, now almost a decade later is seeking to retrospectively apply a higher threshold in this regard.

3 Another member of staff does not hold a level 7 qualification and yet receives the Senior pay scale. The Employer has made an accommodation for her UK qualifications. The Claimant has applied her qualifications to her role from the outset.

4 The Employer has not applied consistency across their service in terms of criteria for the position of Senior Supervisor/Instructor. The Union is not prepared to accept that a re-alignment of the claimant to the senior pay scale would constitute a prohibited promotion.

5 The Union understands the trading position of the employer and has sought to resolve the matter internally.

6 The Union expressed reservations that the employer was now seeking to reduce the claimant’s responsibilities as a demotion, to justify paying her less than her colleagues. This would be perceived as a punishment and an erosion in service to service users.

The Union has identified that the Dispute could be resolved by alignment of the claimant to the HSE Senior Supervisor /Instructor grade (Specialist Agencies) with immediate effect with full retrospection to October 2007

The Employer rejected the claim. he Employer submitted that the claimant is employed as a part Time Home Support Worker on a Basic Instructor scale and she has been given opportunities to develop, excel and grow professionally by taking on additional tasks at her request.

The Employer provides support for children and adults with Intellectual disability and autism in the South of Ireland on behalf of a Public Body. This is done by Service level agreement (SLA). The Employer also runs a team who provide assessment and intervention services to children with Autism.

The Claimant commenced employment on 30 October, 2007 as a part time Home Support Worker with regional autism services. She was placed on the 4^th point of the Basic Instructor scale. She is currently on the 11^th point of the scale and is paid €37,218 annually.

In April 2016, the claimant queried her grade with her line manager. She was informed that promotional positions must be advertised as an employee must have the required qualifications to be considered for a post.

The Claimant followed up on 104 hrs available at Senior Instructor level and was informed that these hours could only be taken up by existing staff, with four years’ relevant experience who were qualified at degree level in social care or equivalent.

The Union sought additional hours for the claimant on 14 July, 2016, the Employer received an email from the Union in follow up which accepted that additional hours could be completed by an extension of the substantive pay scale of the person who chose to take the hours.

The parties met at local level in February 2017, where the Employer offered a support package for the claimants ongoing studies. The Union requested that the claimant be automatically transferred to the Senior Instructor pay scale.

The Employer responded and highlighted that fair process must be applied to any promotional appointment within the service in line with best practice a taking in the demands of the service funder.

The Employer advanced the following arguments in support of their position.

1 The Employer operates in a highly-regulated sector, where professional standards must be adhered to. There is a reasonable requirement that nay member of staff appointed to the role of Senior Instructor has a level 7 qualification. The Employer is subject to the requirements of the Health Act 2004.

2 The Autism service grew quickly between 2004 and 2007. There were opportunities for enthusiastic and good staff to develop and grow within their roles. The Claimant was one of these employees. However, while an excellent employee, her role for she is employed is that of Instructor level. This does not have the same educational standards required as a Senior Instructor. The Employer has determined that a level 7 qualification would be required for the role of senior instructor. This is reflected in all job advertisements and descriptions.

3 While the claimant has been given the opportunity to take on additional tasks associated with the senior role, it has always been with her agreement and for self-development. The Employer does not seek to penalise an employee for giving them an opportunity to take on additional responsibility.

4 The Claimant referred to a comparator who assumed he role in 2006. This is a red circled arrangement. The Regulation governing the current environment now stipulates that what determines a senior role is not just experience but also professional educational standards. The Employer had made reasonable offer to support the claimant in securing her level 7 qualification.

5 There is neither demand nor funding to create another Senior Instructor role in the service currently. The claimant is paid the salary which reflects the role she is employed in.

6 The Employer contended that the claim is cost increasing and therefore prohibited under the Public Service Agreement which precludes Trade Unions from making or processing cost increasing claims during the currency of the agreement.

7 The Employer contended that the claim related to the terms and conditions of a body of workers and argued that the Adjudicator lacked jurisdiction.

8 The Employer has engaged with the claimant in seeking a resolution to her claim. The Respondent has acknowledged he ambition, commitment and hard work of the claimant. When the issue of pay came before the employer, they sought to engage offering to decrease her responsibility to ensure they accurately reflect her job description. On completion of her BA, she would be eligible to apply for appropriate roles as advertised.

The Employer requested that the claim be rejected because the claimant did not have the educational qualification pre-requisite for the position of senior instructor and no funding was available for such an alignment.

I have considered both parties stated positions in this case. I accept both party’s submissions that the Autism services developed with haste, commitment and vigour and the service users and their families were prioritised for service. It has been a successful service.

However, this is a case of a claim for uniformity of pay scale and I must consider the claim strictly within those limits. I must start with an analysis of the claimant’s contract of employment.

The first contract I had sight of was a specified purpose contract agreed by the parties in 2012 and approved by the employer on 20 September 2013. The lifespan of this contract referred to a three-month period in 2011 and the Job title was marked as Home Support Worker paid on the Care assistant scale. This was superseded by an offer of a contract of indefinite duration dated 3 November, 2014, but effective from 23 September, 2012.The title of the position was Family Support Worker.

I note that the presiding advertisement, dated 19 October 2007, which signalled the claimant’s arrival to work with the employer was described as Family /Support /Development Worker Ref 83/07. I have established that there was some inconsistency on the title of the position at the centre of the claim between Family/Home Support and Development Worker. I accept the party’s submissions on the rapid evolution of service as being at the root cause of this, however, I found that it led to confusion.

The claimant was not paid as a Health Care Assistant as set down in her contract of employment and was paid on the Supervisor /Instructor scale for Specialised Agencies.

I could not establish the relevance of the Employers arguments on the terms of Section 22 Health Act ,2004 being applicable to the claimant, when it did not form an implied or express term of her contract of employment. The Employer in this case is a registered charity, while the Health Act refers to a Public body with a separate and distinct group of employees. I note that the claimant is a member of a parallel pension scheme to that of the Public Body. This confirms the distinction.

The Employer confirmed at hearing that despite efforts to stream line the claimants position, that on the date of claim, there was no material difference between her role and function and that of the Senior Instructor grade. I understand that the pathway to the senior role may have been varied and couched in historical convention, however, I must investigate the claim in real time. In this, I am very much guided by the pronouncements contained in the correspondence shared by the employer with the claimant on 25 May, 2016, where the role of Home Support Worker was stratified into two parts.

1 An operational involvement with the individual children and their families.

2 Incorporated (1) with an extra responsibility of collaboration with the Multi-Disciplinary Team and delivering training programmes.

I note that the Employer confirmed that the claimant was judged to be operating in the second sphere. This was re-affirmed at the hearing.

I appreciate that it cannot be my role to decide whether the claimant merits a Senior Instructor for Specialised Agency position and commensurate Pay scale. I have investigated the circumstances surrounding her pay determination to ascertain whether her current situation can be deemed as fair and reasonable? I find that I have jurisdiction to hear this case as it does not incorporate a claim for the terms and conditions of a body of workers.

In listening to both parties, I noted a certain lack of transparency in the application of the pay scale in this case. It is very important for high performance and staff morale alone that transparency is readily identifiable in pay determination. The claimant was working in the organisation for over 9 years before she informally discovered a layered pay determination in the grade of Home Support Worker in 2016. A generic job title suggests a generic pay scale and I was surprised to discover that this was not the case.

I was struck by the Employers extensive argument on the code of practice on recruitment in the Public Service, but once again, I saw no reference to these terms in the contract of employment. I do, however accept that the Employer is influenced by service level agreement with the public funding body.

What is before me is a claim for alignment to the grade of Senior Instructor for the work of a Home Support Worker. There are 7 people currently doing this role, 3 of whom are senior and when one left they were replaced by a Senior. This allows me to conclude that the Employer has exercised considerable discretion in relation to the pay determination for these positions. I have also heard that he claimant works in an undifferentiated way to that of her Senior colleagues in the field of Home Support Worker. This constitutes an anomaly in Industrial relations language.

I appreciate that the employer is reluctant to move to resolve this anomaly in the claimants favour and has chosen to regard the sole pathway to the Senior Instructor pay scale as through competition rather than alignment. I cannot accept that the claimant’s educational qualifications serve as a veritable bar to resolving this anomaly. The Organisation has acknowledged that her role and function are comparable to the other Senior Instructors/Home Support Workers.

The Employer did not submit evidence of their inability to pay the differentiation in the two pay scales.

In St Patricks College and IFUT LCR 20435, 2012, the Labour Court considered a very similar context and background to a claim for regrading to an Assistant Lecturer for a Tutor employed from 1992.

Both parties in the case agreed that the Applicant, though classified as a Tutor had been consistently assigned and had undertaken the full range of duties appropriate to the Assistant Lecturer level. He was paid a “bespoke personal scale “The College relied on the Section 1.27 of the then Crooke Park Agreement on cost increasing claims being prohibited.

I quote the following from the Courts Recommendation:

In the Courts view, the difference between the form and substance of the Applicants contract of employment is at issue here. The Worker is employed and paid as a Tutor but is required to carry out the work of an Assistant Lecturer. In these circumstances, the Court takes the view that the College cannot rely on the formal terms of the contract to defeat the workers claim. Instead, the Court finds that the Applicant is entitled to payment based on the work that he is required to perform.

The Court went on to hold for the claimant stating that prohibition of cost increasing claims cannot mean that a worker such as this will be paid a rate of pay below the agreed and established rate for the work he performs. that of Assistant Lecturer. The Court recommended that the claimant be placed on the Assistant Lecturer scale with immediate effect.

In the instant case, there is no dispute that the claimant works on par with her fellow Home Support Workers who receive the Senior Instructor pay Scale. I am obliged to apply the considerations of the precedent contained in St Patricks College in that regard.

I have found a significant administrative lag in this case, the claimant has clearly evolved into the role of the second strata of Home Support Worker for which the employer pays a Senior Instructor/Home Support Worker Pay scale. I cannot establish a fair or reasonable purpose for her exclusion from this pay scale.

I find that the claimant has demonstrated a clear anomaly. I recommend that the Employer aligns the pay and work of the claimant with the established rate of pay for the job, that of Senior Instructor/Home Support Worker and place her on the appropriate point of the Scale with immediate effect in full and final settlement of the claim.

I have not found in favour of the claim for retrospection.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I have found that both parties made a concerted effort to resolve this Dispute. I acknowledge that the claimant is held in high regard by the Employer. I also acknowledge that the Employer is working across a broad service spectrum. However, this must be underpinned by uniformity of approach.

I find that the claimant has demonstrated a clear historical anomaly. I recommend that the Employer aligns the pay and work of the claimant with the established rate of pay for the job, that of Senior Instructor/Home Support Worker and places her on the appropriate point of the Scale with immediate effect in full and final settlement of the claim.

I have not found in favour of the claim for retrospection.

Uniformity in pay scales. Retrospection.