ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00006930
Parties:
| Complainant | Respondent |
Parties | A Consumer Services Officer | A Health Sector Employer |
Representatives | Ms. Bernie Walsh | Mr. Paul Hume, IR Officer |
Claim:
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-00009393-001 | 30th January 2017 |
Date of Adjudication Hearing: 28th June 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with the provisions of 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 dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The Complainant was in dispute with the Respondent in relation to her appropriate pay grade or rate.
Summary of Complainant’s Case:
The Complainant said that she works for the Respondent as a Consumer Affairs Officer (since 2005) at a named base and she is a Grade 6 Section Officer and has responsibility for the following areas:
Data Protection Act Decision Maker
Complainants Manager
FOI Act Decision Maker
Consumer Involvement in various areas
General Patient Information
Management of Trust in Care Investigations
Trust in Care Reviewer
Management of Parliamentary Questions
Management of Public Representative Queries.
Management of Interpreter Services
Access Officer
Self Management Support Co-Ordinator (2011 – 2015)
The Complainant said that it is important to note that there is no dispute between her and the Respondent that she undertakes these tasks as part of her role.
The Complainant said that on 10th August 2015, she complained that her counterpart at a named close by location was/is paid at a Grade 7 and that on equality grounds she should receive equal pay to that of her Comparator and that they both undertake ‘like work’ under similar under similar conditions for the same Employer. She said her Comparator has received Grade 7 since October 2013, for performing her role, but that she has been paid at a lesser rate for the same job.
The Complainant said that at the request of the General Manager a named other Senior Manager undertook a review of her complaint and issued her Recommendation on 24th August 2015, that the Complainant should be regularised to the same grade (equal pay) as her comparator as in her opinion the Complainant “has a strong evidence base is seeking equality with her Comparator in….”
The Complainant said she is treated less favourably than her comparators is that she is paid at Grade 6 and her named Comparator and her other comparable colleagues across the Respondent are being paid at Grade 7. The Complainant contends the rate for the job is well established across the Respondent and she is seeking that in view of the period of time that she has carried out the role, some 12 years, that she should be regularised as the same grade and receive the same rate for the job as her comparable colleagues.
The Complainant said that the work performed by her is equal in value to the work performed by her colleagues in the wider Respondent having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
The Complainant said the person charged with reviewing her complaint on behalf of the General Manager found in her favour stating: “It is my opinion that (the Complainant) has strong evidence in seeking equality with her comparator in (a named area) and “I recommend that (the Complainant) is regularised at Grade 7 effective from the date of appointment of her comparator.” (October 2013).
The Complainant said that regrettably 10 months later, having pursued the matter further she received correspondence from the General Manager that similar posts in two named area operated at Grade 5 and on that basis felt she could not regularise the Complainant and recommended that she pursue her complaint by engaging in the Job Evaluation Scheme due to commence in June 2016.
The Complainant said that naturally she was most unhappy with this outcome and on 1st June 2016, she appealed her complaint outcome to a named Chief Officer; however no response to this appeal was forthcoming.
The Complainant said that it was, and continues to be the case, that she is being paid at a lesser rate for her work than that of her comparators within the Respondent. She said that the General Manager relied upon the Grading structure in a named area, which is not representative of elsewhere within the Respondent, in respect of Consumer Service type roles similar to hers. The Complainant said that the General Manager failed to explore or pose the question why it was that the listed roles were not representative of the rest of the Consumer Services Officer roles within the Respondent. If the General Manager had taken the time and made the effort, she would have discovered it is because the post holders in the named area are not Complaint Officers. Therefore, the responsibilities undertaken are lesser than their colleagues within the wider Respondent and she said that for example the persons in the named area do not:
Sign off on complaints
All complaints are signed off by Service Heads
Do not undertake Mental Health FOI requests
Do not undertake Trust in Care Investigations
Do not undertake Self Management Role
Do not undertake Interpreter’s Role.
The Complainant said that she has no desire to diminish the good job her colleagues in the named area undertake and perform; she said that however it is a fact that there is the obvious difference in responsibility and remit between her role and theirs that takes account of the grading difference. The Complainant submitted supporting documentation in respect of the grading structure across the Respondent.
The Complainant said that it appears that the General Manager undertook a desktop exercise and once she discovered that the roles in the named area were at Grade 5 level, she drew her own conclusions and simply dismissed the Complainant’s complaint suggesting she go down the Job Evaluation route that had not been agreed at National Level at the that time (25th May 2016).
The Complainant said that she takes issue with the General Manager’s handing of her complaint as two days later when the General Manager was dealing with a similar request from a named member of staff wishing to be regularised as an Assistant Director of Nursing (ADON), she seems to have taken a very different tack. The Complainant said she obtained this information under the FOI Act and she was quite shocked at the stark contrast between her case and how that other case was dealt with and seemingly easily regularised with a short timeframe, from May 2016 to November 2016, whereas the Complainant’s complaint date from August 2015 and continues.
The Complainant said she strongly disagrees that the Job Evaluation Scheme is appropriate for her case for the following reasons:
Her Role has an established Grade and Rate for the Job and therefore does not require evaluation
There is no timeframe available to applicants for the processing of cases
There is no retrospection for applicants under that Scheme
The Job Evaluation Application cannot be described as user friendly
Since re-opened in September 2016, some 10 months ago, only 5 applications have been processed under the Job Evaluation Scheme
Application are queued in accordance with national agreement as follows
(a) those waitlisted from 2008
(b) referrals from the Regularisation Process
(c) those redirected from 3rd Party processes
(d) clerical officer grades
(e) all others
7. The Complainant contends that by diverting her down the Job Evaluation route the General Manager is treating her differently, from the other named case, and unfairly thereby unnecessarily further financially disadvantaging her.
The Complainant said that it is ironic that she deals with complaints from the Respondent’s Services Users when standards fall short of what is expected and they complain, as is their right. She investigates such complaints and recommends remedies/improvements to the Respondent services management to ensure standards are improved.
The Complainant said that in this matter she has encountered at first hand how the Respondent have failed to adhere to their own procedures and their standard of dealing with her complaint is most definitely well below what she is entitled to expect. She said that this has taken its toll on her and she feels that she has been put through the wringer and she has had to constantly push to have her case properly dealt with and to be heard. She said it is at odds with how the other named case appears to have been dealt with and she is left feeling stress and she wonders what it is that has caused the Respondent to treat her in such a different manner and in also in such an indifferent manner.
The Complainant submitted that the Respondent has in this case fallen well below their own standards, if not utterly failed, for the following reasons:
Adherence to their own Grievance Procedure in terms of process and timeframes
Commissioning an Investigation to be carried out by a senior Manager and subsequently ignoring the recommendation of that Investigation.
After a 10 month time-lapse, during which the Complainant sent letters and email reminders the General Manager, who had commissioned the Investigation, ignored its findings and in responding to the Complainant refers instead to lower grade employees whom she deems carry out the same duties as the Complainant and that therefore she cannot implement the Investigation’s Recommendation. The Complainant informed the General Manager that the employees she referred to do not carry out the full remit/responsibilities and she elaborated on the differences. The Complainant said an objective reasonable solution would have been to ask the Senior Manager who carried out the Investigation to explore this matter, but she did not and simply closed the matter, full stop.
In May 2016 the General Manager wrote to the Complainant and encouraged her to pursue her case through the Job Evaluation Process, when that Process was not even agreed or in operation at that point. The Complainant was also offered the right of appeal in accordance with the Grievance Procedure but the Respondent then duly ignored this Process.
The Complainant said that it is her case that she is being treated unfairly by the Respondent in that she is paid at a lesser rate for the job than her Respondent comparators who perform the same job and responsibilities. The Complainant contends that this is supported by the outcome of the Investigation commissioned by the General Manager and is contrary to how the General Manager dealt with the other named case.
The Complainant contends that directing her down the Job Evaluation Process was unfair and unjust in that there was already a well-established Grade and rate for the job that her comparators receive; she said she merely seeks the same. In addition, the Job Evaluation process was not agreed at the time and the Complainant believes that it was simply used as a method to dismiss her complaint.
The Complainant said that the Job Evaluation Process introduced in September 2016, is not the appropriate remedy for her case; it is unwieldly and appears ill thought and at best not properly resourced with only 5 applications being processed thus far in the first 10 months.
The Complainant said that the roles and responsibilities of the Consumer Services Officer’s positions within the Respondent are broadly similar; most have a wider responsibility for signing off on complaints and conducting investigations. She said these roles are set at Grade 7 or higher, but the majority of them are at Grade 7 and documentation submitted to the Hearing supports this view.
The Complainant said the two posts relied on by the General Manager are roles that do not undertake the full Complainants Officer/Investigation remit of the established Grade 7’s elsewhere within the Respondent.
The Complainant said that the Investigation into her complaint established that she carried out equal duties to her comparator who receives Grade 7 rate for the job.
The Complainant said that the Respondent has shown, through documentation received under the FOI Act, that they can regularise and apply the rate for the job to employees when they wish and obviously not when they don’t.
The Complainant said that there is well established precedence in similar such cases as set out is two adjudication officers recommendations and one Labour Court Determination submitted to the Hearing - ADJ-000003519, ADJ-00002849 and LCR20862 refers.
The Complainant said this has been a long and protracted process for her and she sought that her claim be upheld by recommending the implementation of the Investigation Recommendation concluded in August, which will result in her receiving the established grade and rate for the job. The Complainant also sought some element of financial compensation for the stress she has had to endure in having her complaint heard.
Summary of Respondent’s Case:
The Respondent said the Complainant is a Grade 6 Employee of theirs who works in their Consumer Services Office and she has been in this position since 2nd February 2005 on a temporary basis until she was made permanent on 11th July 2011. The Respondent said that she works as a Consumer Services Officer and a copy of her job description was submitted to the Hearing.
The Respondent said the complaint is being heard under the Industrial Relations Acts and they said that she is citing a named person as her Comparator and that named person is a Grade 7 employee.
The Respondent said that the Complainant originally took her case as a grievance under their Grievance Procedure. The Respondent said that grievance complaint was heard by a named Senior Manager on 21st August 2015 and that Manager upheld the Complainant’s grievance complaint.
The Complainant wrote to her Line Manager, the General Manager on 17th September 2015 and again on 29th March 2016, seeking an update on her grievance complaint following the above hearing and decision from that hearing.
The General Manager responded to the Complainant on 25th March 2016, regarding the outcome and decision of the hearing and she stated that the Respondent was not in a position at this time to regularise her post to Grade 7.
In accordance with the agreed Grievance Procedure the Complainant appealed this decision to the named CO CHO Area and a named person was appointed to hear the Appeal; but this never happened.
The Complainant said that in tandem with this process the Complainant sought mediation under the auspices of the WRC. The Respondent said they agreed to engage with this process and date for this was agreed. The Respondent said that however as they had nothing new to offer at mediation there was a mutual agreement to suspend it as there was nothing to be gained from attending.
The Respondent said that the Complainant is citing a named person as a comparator. They said that they were unable to obtain a job description on this named person’s role to compare and contrast the roles and therefore were unable to make a decision on this. However they acknowledge that they did obtain from that named person correspondence outlining her role.
They said that however they are aware that that person transferred into the Consumer Services role as a Grade7 (this assertion was denied and strongly challenged by the Complainant). The Respondent said that the previous post holder had retired as a Grade 6.
The Respondent said that however they did look at alternative comparators in other named area and were informed that the Consumer Services Officer in those two area are at Grade 5, a grade below the Complainant.
The Respondent said they have not been able to make a decision in relation to this particular case. They were unable to obtain a job description for the Comparator cited and therefore they could not compare and contrast both positions.
The Respondent said they note that in her submission the Complainant states that they had recently advertised a Consumer Services Officer Post at Grade 7; but they said that there is no evidence at this time that they are like for like post as their website states that the post is “coming soon”.
The Respondent said that they are of the view that the Complainant’s case can be effectively dealt with by way of the new Job Evaluation Scheme that allows for the assessment of role versus salary / grade which the Respondent has recently launched and they sought that this process be recommended in the instant case.
Findings, Conclusions and Recommendation:
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 find the Respondent’s position in this matter difficult to understand and even more difficult to agree with. Their position does not make sense.
I note the Respondent states they were unable to obtain a job description for the Comparator cited by the Complainant and that accordingly they were unable to make a decision in this particular case.
I find this an extraordinary statement and one that is not consistent with the established facts of the case. Firstly I note that each employee is provided by the Respondent with a written job description and it is difficult for me to understand how there would be any difficulty with them simply accessing the job description in this instance. Secondly I note that the Respondent actually provided me with a copy of a description of her duties provided to them by the Comparator and again it is difficult for be to understand or accept why this description could not be accepted by the Respondent for comparison purposes and if it was not comprehensive enough why that Comparator could not have been asked for any elaboration required.
I further, and most significantly, note that the Senior Manager commissioned by the Respondent to investigate the Complainant’s grievance complaint experienced no such problem.
Indeed the Investigator states that it was established as facts variously that both were appointed and held the same job descriptions and further that both have recently been appointed as Access Officers.
I also note that subsequent to the hearing I was provided by the Complainant with an email from the Comparator nominated by the Complainant that supports the position of the Complainant that she (the Comparator) had been regularised/upgraded as a Grade VII in October 2013 and not as suggested by the Respondent that she was already a Grade 7 before she became a Consumer Services Manager.
I cannot accept that there was a lack of information necessary to conclude whether or not the Complainant’s work, duties and responsibilities were comparable with that of the Complainant and accordingly the Respondent’s submissions in that respect are rejected by me.
The Complainant made a formal written complaint under the agreed Grievance Procedure on 10th August 2015. In this formal letter of complaint the Complainant stated the following:
“I write to advise that I am making a complaint under the Grievance Procedure on the grounds of equality. The evidence to support my complaint is that my comparator in (named location close to where she works) is paid at Grade V11 level.
I am requesting therefore that I am regularised at Grade V11 effective from the date of appointment of my comparator”
The Respondent’s named General Manager arranged for and commissioned a Hearing of the Complainant’s complaint by a Senior Manager. The Hearing took place on 21st August 2015 and following on from that and following due consideration the commissioned Investigator issued her Report. That Report stated as follows: (I refer to the Complainant as she or her in this quotation of the Report)
“(The Investigator) outlined the purpose of the meeting and invited her to state her case and how she would like to see the matter resolved.
The Case
Shestated that she is making the complaint under the Grievance Procedure on the grounds of equality. The evidence to support her complaint is that her comparator in (named location) is paid at a Grade V11 level and she is requesting that she is requesting that she is regularised at Grade V11 effective from the date of appointment of her comparator.
Facts established during open discussion.
The need for the post of Consumer Services Officer established in (the area) approximately 15 year ago, ……………………………………………
Two posts were approved and advertised at a Grade V1 level, on one for (where her comparator works) and one for (where she works) Both were appointed at Grade V1 and held the same job descriptions
The posts are unique to (the County in question)
Both post holders have also recently been appointed as Access Officers
The postholder of the comparative post in … was recently regularised as a Grade V11 under Haddington Road, (exact date can be validated on PPARS)
She outlined how her post has developed over the years and how some of her responsibilities are over and above that of her counterpart, i.e. she signs off on all complaints response, while with her comparator the General Manager signs off on complaints for that site. Also she stated that she in the only person at grade 6 who carries out the duties of Review Officer under Trust in Care; Service Managers undertake this duty in other areas.
In addition the Complainant deals with areas such as Freedom of Information Requests, Parliamentary Questions and requests from Public Representatives
Recommendation
Based on the information ascertained above it is my opinion that the Complainant has a strong evidence base in seeking equality with her comparator in ……. On that basis and on the basis that these posts are unique to (the named County) and there is unlikely to be any repercussions for the rest of the Organisation, I recommend that she is regularised at Grade V11 level effective from the date of the appointment of her comparator.”
This Report and its recommendation, which are clear and unambiguous, have not been challenged in relation to the facts established in it or indeed otherwise to me. It is a comprehensive Report with clear findings of fact included. In my view for such a Report commissioned by the Respondent and its recommendations not to be accepted and implemented by the Respondent would require clear and compelling reasons, such as that it was perverse, illogical, not in accordance with established facts and unreasonable in the extreme and none of these were established in the instant case.
In the absence of any good reason for the contrary the Complainant was and is entitled to have the outcome of the Investigation Report implement. For this reason alone I find and declare that there is considerable merit in the claim/complaint and it is upheld in full by me.
In addition I do not consider the proposal of the Respondent that the Complainant should enter her claim/complaint into the Job Evaluation Scheme to be reasonable or fair to the Complainant.
Firstly I note that the Job Evaluation Scheme did not even exist at the time the proposal to use it was made by the General Manager.
I further note that this Scheme has only processed 5 cases in its first 10 months and that there is a very long list of applications to it, and further that the method of listing on which the cases are dealt with is not at all beneficial to the Complainant and it appears she would most probably have to wait a very long time, years probably, for her case to be heard and with apparently no arrears or retrospection to apply this could hardly be said to be a reasonable proposition for the Complainant.
However of considerably more significance is the fact that I am satisfied as was the Respondent’s own Investigator that the job performed by the Complainant has an established grade and rate for that role and it should not require a further process or job evaluation to confirm this.
In relation to the way this matter was handled by the Respondent it certainly leave a lot to be desired.
Indeed, it is accepted by the Respondent that they were in breach of their own procedures in the way they handled this matter. On 1st June 2016, the Complainant submitted a formal written appeal against the decision of the General Manager to deny her the upgrading sought. It is accepted that this appeal was received by the appropriate member of management, but no appeal ever took place. This is a breach of the Respondent’s own Grievance Procedures and a serious one, denying the Complainant an internal appeal and delaying the matter unnecessarily.
It is also true to state that there were lengthy, unnecessary delays by the Respondent in dealing with the matter, which were/are unfair to the Complainant.
The initial part of the procedure dealing with the Complainant’s grievance complaint, that was dealt with by the named Senior Manager commissioned by the General Manager, was prompt, thorough, expeditious and fully respected the Complainant’s rights. The written grievance was submitted by the Complainant on 10th August 2015, this was the subject of a Hearing by the named Senior Manager on 21st August and the outcome was sent to the Complainant along with a cover letter dated 16th September 2015. This was conducted within a reasonable timeframe of just over 5 weeks. It should be noted that the Report is a model of its kind containing facts established, conclusions reached and the reasons for those conclusions and with a clear unambiguous recommendation and the reason for the recommendation clearly stated, and it is concisely stated in less than two pages. However, despite this, it is after this that the very lengthy delays occurred. It was not until 25th May 2016, more than 6 months later, and following 3 reminder letter from the Complainant on 17th September 2015, 29th March 2016 and 12th May 2016, that the General Manager responded to this. This is an inordinate delay by any standards, it is in clear breach of the requirements in the Respondent’s own Grievance Procedure, SI No. 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures, which lays down minimum standards for dealing with grievance and disciplinary matters in employment and the general right of workers, well established, to have grievances dealt with in a timely fashion. The Respondent needs to take these facts and the contents of their own procedure more seriously and ensure that matters are dealt with in a timely fashion and their failure to so do is taken into account in my recommendation.
Based on the foregoing findings I see considerable merit in the claims/complaints and they are upheld in full by me.
I recommend that the findings and recommendation of the Senior Manager commissioned by the Respondent to hear the Complainant’s complaint under the Respondent’s Grievance Procedure issued along with a cover letter of 16th September 2015, be implemented in full, i.e. that the Complainant be upgraded/regularised to/at Grade V11 effective from the date of appointment by her Comparator, which I understand to be October 2013, and I recommend that this be completed as soon as possible and not later than 6 weeks from the date of this recommendation.
In addition I recommend that the Respondent pay the Complainant compensation in the sum of €2,000.00c within 6 weeks of the date of this recommendation for the way they handled this matter and in particular for their failure to afford the Complainant her right to have her appeal against the decision of the General Manager in this matter heard and also for the inordinate delay by them in dealing with this matter that was unfair to the Complainant and caused her such hardship.
I wish to confirm that this sum of €2,000.00c is not wages or arrears of wages, but rather it is compensation to the Complainant for the way this matter was handled by the Respondent.
I also wish to confirm, for the removal of any doubt, that this recommendation is based on the unique facts and circumstances of the instant case and that it cannot and will not be quoted or used by either party or any other party in any other case or dispute.
I so recommend.
Dated: 24th August 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Key Words: Appropriate Pay Grade.