ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00007617

Parties:

Complaint:

Date of Adjudication Hearing: 27th July 2017 and 28th March 2018.

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Procedure:

In accordance with 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:

SIPTU were in dispute with the Employer in relation to the appropriate pay grade for the Claimant.

Brief Summary of Trade Union Case:

SIPTU said they are seeking for the Claimant to be paid appropriately for the CNM2 role she fills in the Autism Service of the Employer.

SIPTU said the Claimant has worked for the Employer since 2003 and she is currently paid as a Senior Staff Nurse but she has worked as a CNM2 (Autism Therapist) in the Autism Service, since being seconded into that post in May 2012.

SIPTU said the CNM2 Grade goes from €48,089 to €56,852 on a 9 point scale while the Senior Staff Nurse Grade is paid at €46,954.

SIPTU said the Claimant works approximately 29 hours per week and is based at a named location.   They said that initially she was requested to move to the early intervention service to provide cover for sick leave for a period of 3 months.   They said this continued for a further 18 months following which she again covered maternity leave and on the return of the employee from maternity leave the Claimant was retained.   SIPTU said that throughout this time, the Claimant had her own specific workload.

SIPTU said that in May 2016, the Claimant started to raise the unfairness of her situation with management and while verbal commitments were given to have her recognised for the work she was performing, nothing materialised.   In October 2016, the Claimant formally raised the issue of her pay through her SIPTU Official.   No response was received and a further letter was sent to the Employer on 19th December 2016. The Claimant herself wrote to her (then) named Service Manager on 20th December 2016 providing a copy of her job description.   A meeting took place between SIPTU and the Service Manager on 11th January at which the Service Manager indicated that the appointment would be finalised prior to her vacating her role as Service Manager.   The Service Manager issued correspondence on the matter and SIPTU wrote on 25th January 2017 seeking an urgent meeting.   Later the Service Manager issued correspondence on the matter and SIPTU replied on 25th January 2017 seeking an urgent meeting.

SIPTU said it seemed that undefined HR matters were now being introduced as a possible obstacle in finalising the appointment.   SIPTU said that nonetheless it was clear that the Service Manager supported the claim being pursued by the Claimant for parity with colleagues who were carrying out the same work.   On 25th January 2017, prior to her leaving the post the Service Manager made an application to the named appropriate Manager in the Employment to have the Claimant’s claim approved.   When this did not proceed, SIPTU emailed this named Manager on 7th February 2017 copying him with the Service Manager’s previous email; but there still was no move to address this grievance.

SIPTU said that in a last-ditch attempt to progress the matter at local level, SIPTU again wrote to the named manager on 7th March 2017, indicating their intention to proceed to a referral to the WRC if the issue was not addressed.   In the absence of a response the case was lodged with WRC on 16th March 2017.

SIPTU said the facts of this matter are as follows:

• The Claimant is carrying out the duties of a SNM2 Grade and this was accepted by her Service Manager.
• She is being paid as a Senior Staff Nurse, which is less than the CNM2 rate as her colleagues who work alongside her doing the same comparable work as her are paid.
• The Claimant was placed in this post some 5 years ago, but she is no longer covering for absence or leave, as those who were on leave have returned to work.
• She continues to have a full case load assigned to her and she has full responsibility for this work.
• Her named Service Manager, has fully supported her in her claim to be paid at CNM2 level.   The Service Manager fully recognised the Claimant’s entitlement to this pay rate, based on the work and responsibility of her work/role and she had processed an application to the Senior Manager for approval for this rate.

SIPTU said they were seeking payment of the CNM2 salary going forward, with retrospection from May 2016, which is when the Claimant initially raised this matter with her Manager.   SIPTU said the Claimant should be placed on the appropriate point of the CNM2 Pay Scale in line with her service and be provided with a contract of employment to that effect.

Following an adjournment of the first date of hearing to allow the parties to have the opportunity for further discussions, particularly in view of some of some submissions of the Employer that was new and unexpected to SIPTU/ the Claimant there was a further exchange of correspondence between the parties that was copied to the WRC.

SIPTU said that they and the Claimant were shocked and completely taken aback by the submissions, that the Claimant does not or is not in a position to provide the same full range of work as the others in the Autism Service.   They said that this had never been suggested or even implied at any stage prior to the first date of the hearing and this was emphatically denied by both SIPTU and the Claimant in detail.   They submitted and insisted that the Claimant performed every aspect and element of the job and went into detail in that respect.

In relation to the submissions by the Employer in relation current qualifications for the job they said that less than half of the current incumbents would have the social care qualifications referred to by the Employer.   They said that a number of the current incumbents had the same qualifications and background as her, but that each of them were paid more than her and at least the CNM2 rate sought by her.   The Complainant said it is a fact that there was no problem with her qualifications over the previous 5 years, in fact it had never been raised by management or even mentioned.   She said that the fact was that her work was perfectly acceptable to management for the previous 5 years and it now appears to now only been raised to bolster their cased to prevent her receiving the correct pay and conditions for the job done by her.   SIPTU said the fact that the students taken into the Service are in fact nursing students and not social care students, which they said seems to contradict the assertions made in respect of social care qualifications.

SIPTU and the Claimant said that contrary to the submissions made by the Employer her workload was actually greater than her colleagues.   The Claimant said that she performed the same workload over 4 days per week as others performed over a full 5-day week.  

The Claimant said she provided the full range of duties and had the same level of responsibilities as all of her colleagues in the Autism Service and went into detail in that respect. She said there is no grade or category of work relevant to an Autism Therapist that she is not permitted to do.

In relation to the small number of complaints made about her referred to by the Employer, SIPTU said this is a matter of concern to them as they have not been formally raised with the Complainant and she has been given no opportunity to deal with them.   SIPTU said the Complainant completely refutes and rejects these - and SIPTU said that this can have no bearing on her claim for her proper entitlements.

The Claimant denied the submission made by the Employer that she had not organised and/or facilitated Joint Multi-Disciplinary Team Working and she provided copious information in that respect.

SIPTU again sought that the claim be upheld.

Brief Summary of Employer’s Position:

The Employer was rejecting the claims on behalf of the Claimant and stated that they were not well founded and they should be rejected.

The Employer said that the Claimant’s placement as a Staff Nurse in the Autism Service in the named Area was a facilitation to her medical condition and her inability to resume her work as a front-line Staff Nurse, following a period of ill-health.   The Employer said that since the initial placement there were two attempts to return the Claimant to Staff Nurse duties at two named locations, but both attempts failed.

The Employer said they rejected the Claimant’s claim for a number of reasons including:

The Employer said the current qualification requirement for the job of Autism Therapist is a degree level qualification in social care based on the Job Specification.   They said in the past a nursing qualification was acceptable health professional qualification for the job, however the role has evolved and moved to a social model of care.

The Employer said it is a pivotal role of the Autism Therapist to organise and facilitate joint Multi-Disciplinary Team working in the form of social skills groups, life skills groups and play skills groups as Children with Autism present with skill deficit in these areas.   They said that despite this being a core function of the Autism Therapist the claimant has not initiated, co-ordinated or organised these groups to date.

The Employer said that it is not possible for them to place as much reliance and responsibility on the Claimant as other therapists and quoted two instances involving alleged complaints against her and provided details in that respect and they were discussed in great detail.

The Employer said that as part of a due diligence reporting requirement all autism therapists were requested to provide an update report to inform the level of activity in relation to core caseload work and service provision.   The Employer said that the Claimant’s submission in comparison to that of all other therapists reflected a marked difference of workload activity.    

In discussion about the question of workload the Employer said that there was much more to measuring workload than the number of cases or clients carried, as different cases or clients required a different level of work.  

The Employer said they understood that the Claimant does not see her future in the Autism Service and will seek re-assignment to another service area.

On the first day of hearing the Employer said that job evaluation was the way to go to resolve the dispute.   However, at the resumed hearing when this was explored further both parties agreed that the Job Evaluation Scheme in operation in the employment did not and could not deal with this grade and there would be no point in referring it there.

The Employer said that for the above reasons and as the Claimant was not working at the same level as her comparators it was not appropriate to grant the regrading sought by the Claimant and SIPTU. pay her the higher rate of pay/salary sought.  

The Employer submitted that their position was reasonable and they sought that their position be upheld and that claim be rejected.

Findings and Recommendation:

Section 13 of the Industrial Relations Acts 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 by both parties and I have concluded as follows.

I find it unusual that the Claimant and SIPTU were hearing for the first time the reasons advanced at the hearing for not granting her claim for upgrading and I note that there was ample opportunity to share this with Claimant and SIPTU during the period that they were raising this with the Employer.

I cannot accept that there is any compelling evidence that the Claimant does not perform the full range of duties and responsibilities as her colleagues in the Service and I note that no valid specific evidence was given of this. I also note that at no stage was this raised with the Claimant, discussed with her or was she afforded her any opportunity to respond, not even after the Claimant raised her claim for upgrading and I note that it does not appear to have inhibited in any way her ability to perform all elements of the job.   I find that I accept the evidence and submissions of the Claimant and SIPTU in that regard.

I was not presented with any compelling evidence that the Claimant does not perform the full range of duties or have the same level of responsibilities as her colleagues in the Service and I note that she has remained in the position for a very lengthy period apparently performing the job to the apparent satisfaction of the Employer and it is certainly the case that no dissatisfaction with her capacity to perform the full range of the job was ever raised with her at any time prior to the hearings in the instant case.

The question of whether the Claimant intends to permanently stay in the Autism Service or if at some stage in the future she might request a transfer is irrelevant to her grading   She is entitled to the correct and proper grade and rate for the job as long as she performs it and she is in no different position than anyone else as regards requesting a transfer.   This cannot possibly be a valid reason for rejecting an upgrading, I cannot possibly accept this submission and it is rejected by me.

Equally any complaints made against the Claimant irrelevant to her grading and should be dealt with in accordance with agreed procedures.

In relation to the question of qualifications I note that this was not a requirement when the Claimant and a number of her colleagues took up the posts and note that her colleagues in the Autism Therapist Service who come from the same nursing background as her and who do not have the degree level in social care are all actually graded at the Grade level sought by the Claimant.   I further note that the Claimant is the only one in the Service graded at the level she is graded at and all others are either graded at the level she seeks or higher.

I note that the previous Service Manager, who had been the Claimant’s Manager for a considerable period of time and was her Manager at the time the instant claim was initiated by the Claimant and who accordingly was in a better position than anyone else (bar the Claimant) to assess her suitability or entitlement to be upgraded, fully supported her claim for upgrading and she approved it and sent that approval to the appropriate manager for implementation. I find this fact to be quite persuasive.

I note that the Claimant is seeking for the appropriate grade for the job she performs and I note that grade or higher is applied to all of her colleagues performing the same work as she performs.

For all of the foregoing reasons I see considerable merit in the claim and it is upheld by me.

As a full and final settlement of the claim I recommend that the Claimant be upgraded to the appropriate point on the CNM2 Salary Scale in line with her service with effect from May 2016 and that she be provided with a contract of employment to this effect, this to be completed within 5 weeks of the date of this recommendation.

I so recommend.

Dated: 27th April 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words:   Industrial Dispute Appropriate Pay Scale