ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00007468

Parties:

	Complainant	Respondent
Anonymised Parties	A Senior Employee	A Health Care Service Provider

Complaint(s):

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-00009787-001	17/02/2017

Date of Adjudication Hearing: 25/06/2018

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

This Complaint is that the Complainant acted up for 8 years as a Senior ICT project manager Grade VIII and that her status and pay scale was not regularised despite an agreement by way of letter dated 26 June 2013 (effective in July 2013) that it would be.

Summary of Complainant’s Case:

The Complainant’s qualification is a IT programmer and she has worked for the Respondent in this field since 1999 in the North/East Area.

In July 2005 she was promoted to the position of Acting Senior ICT project manager (Grade VIII) however her status was not regularised until she was permanently appointed in July 2013. In 2005 it was the understanding of both parties that the acting up role would be made permanent after approximately six months. However due to the economic recession and the moratorium that applied in 2009 to public appointments, the regularisation of her status was delayed for 8 years.

The Complainant is seeking that incremental credit be applied to her to reflect the years during which she was acting up as a Grade VIII ICT senior project manager but did not have the title or the pay scale to reflect that.

The remedy being sought is that, at the very least, the agreement of July 2013 between the parties should be given effect to and that incremental credit be applied from that date until the present.

The Complainant point to a number of cases where Acting up Grade VIII employees were granted incremental credit.

Payroll in Dublin North East informed the Complainant that a number of employees received incremental credit to reflect the time that they were acting up.

The Complainant refers to the Labour Court decision AD 1344 dated 28 May 2013. In its decision the Labour Court described ‘the granting or withholding of incremental credit to be random and inconsistent. In the HSE in the majority of Grade VIII cases has in the past and continues at present to award incremental credit to staff acting in Grade VIII posts.’ In that case the Labour Court went on the decide that there were no reasons to withhold the granting of the incremental credit in the case.

Most significantly the former ICT Director in the North/East region, who was the direct line manager of the Complainant had his acting up position regularised in 2011 and had incremental credit back dated to operate from September 2009.

The Complainant disagrees with the Respondent that the Haddington Road ‘cost neutral’ provisions applied to the regularisation that occurred in 2013. The letter of regularisation dated June 2013 (effective in July 2013) has no mention of Haddington Road or of cost neutrality. Indeed, the circular to give effect to the Haddington Road provisions on regularisation of acting up employees was not effective at the time of the July agreement (its operative date was October 2013) and it cannot operate retrospectively.

Therefore, the Complainant finds herself in a situation where she is being adversely treated than her colleagues elsewhere in the country and adversely treated when compared to her line manager in her own region, who has since retired.

The Complainant seeks a recommendation that the July 2013 agreement be given effect to and that she receive incremental credit to reflect this.

Summary of Respondent’s Case:

1. Circular 17/13 was issued in October 2013 to deal with the regularisation of acting up positions in accordance with the Haddington Road agreement.

2. Haddington Road and Circular 17/13 proceeded on the basis that the regularisation would be cost neutral for the Respondent

3. Haddington Road Agreement was agreed in May 2013 and it is disputed that the regularisation letter issued to the Complainant in July 2013 did not have within it the implied condition of cost neutrality.

4. On page 42 of HRA the Respondent consented to regularisation of long term actors to the implement the LRC proposals of February 2013 by October 2013

5. Therefore, while it is accepted that Circular 17/2013 did not issue until October 2013 the cost neutral provisions of Haddington Road Agreement pertained to any regularisation that occurred after May 2013 and it is not the case that that the cost neutrality of the regularisation only pertained to regularisations that occurred post October 2013. In this way the issue of retrospectivity of Circular 17/2013 does not arise.

6. The Respondent points also to a Respondent/ Union agreement dated in July 2012 in which the cost neutrality of the regularisation of long term acting up positions was clearly referred to, although it is accepted that this agreement does not pertain to senior positions like that enjoyed by the Complainant. Paragraph 5 states “senior posts are not encompassed by this process, a review of such posts will be undertaken at the conclusion of this regularisation process”

7. However, it is clear that from July 2012 onward the Unions were fully aware that while regularisation of positions would occur, that incremental credit would not apply as everyone understood that the regularisation could only proceed on the basis of no cost.

8. Even though the letter confirming the regularisation of the Complainant dated July 2013 did not refer to cost neutrality or any of the conditions laid down in the circular, this is still binds the parties because the cost neutrality was known by the Respondent /Union LRC from July 2012 onwards.

9. How could it be that regularisation for non-senior posts would be cost neutral by senior posts would not be.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

1. It is clear that there has been an inconsistency in the regularisation of acting up posts in Grade VIII positions in the North/East region. Further there seems to have been an inconsistency in relation to Grade VIII post regularisation in the country as a whole. This seems to be determined in different ways in different regions of the country, although the reason for this inconsistent approach is unclear.

2. I am satisfied that the letter of 26 June was an unequivocal offer by the Respondent that her regularisation would occur from 1 July 2013. There is no reference to this being subject to cost neutrality or the Haddington Road Agreement. It could not have referred to Circular 17/2013 as this was not agreed and issued until 3 months after the July 2013 offer.

3. The Respondent’s case relies on terms to be implied into the July 2013, which are not expressly in the letter.

(a) The Respondent says that the cost neutral provision is implied by Haddington Road Agreement (agreed in May 2013) but to which the letter does not refer.

(b) It then says that it is implied by Circular 17/2013 but that was only issued in October 2013 and cannot act retrospectively.

(c) It then says it was implied due to the Respondent/ Union Agreement that was agreed at the LRC first in July 2012 (but this does not apply to senior posts) and then in the amending LRC agreement in February 2013 but again this agreement was not referred to in the July 2013 letter and the amending agreement (which was not presented as evidence, but I have no evidence to suggest that it was different to the 2012 version and that it applied to senior posts)

4. I am satisfied that there was an agreement reached in July 2013 between the Respondent and the Complainant to regularise the Complainant’s status and pay scale to reflect that from 1 July 2013 her position would be regularised from her acting up as Grade VIII position. This agreement does not take account of the period from 2005 -2013 that she was acting up and it is not retrospective in the manner that was afforded to their line manager, who obtained incremental credit back dating to 2009.

5. Given the seniority of the Complainant, the unique facts of her and her colleague’s case (that their immediate line manager was treated differently to them) the fact that she was working on national project and most significantly the fact that the letter that she was given in July 2013 is unfettered by any express language that the Respondent is seeking to imply I find that the Complainant’s complaint to be well founded insofar as the agreement made between the Complainant and the Respondent in July 2013 should be honoured and given effect to.

6. For the above reasons I find this complaint to be well founded and to compensate the Complainant for the loss of incremental credit that she has incurred since July 2013, I recommend that she be compensated by the Respondent the sum of Euro 39,000.000

Dated: 30.08.18

Workplace Relations Commission Adjudication Officer: Emile Daly

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