Complainant

Respondent

Anonymised Parties

A local authority worker

A local authority

Representatives

Self

Local Management

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-00016724-001

10/01/2018

The following points are taken from the Complainant’s submission to the WRC.

Background.

1.      In 2010, I was informed by my employer of their intention to relocate me from my post in the Corporate Affairs Department to the Internal Audit Unit.   I worked with and reported to the Head of Internal Audit, who was the Internal Auditor, employed as a Grade 7.

2.      From the outset, it became clear to me that I as now being habitually assigned duties which were that of the Head of Internal Audit. I was authorised duties which were that of the Head of Internal Audit. I was authorised by the then County Manager, to perform the function of Internal Auditor, an authorisation normally assigned to the head of Internal Audit. This authorisation was again assigned to me by the current Chief Executive, in December 2014. In addition, I replaced my retired colleague as Associate Member of the Institute of Internal Auditors, for the years I was assigned to the Internal Audit Unit, with the annual membership fee paid by my employer.

3.      In addition, to my work in the Unit, I took responsibility for the office, reported to Senior Management, drew up the Annual Audit Plan, assigned duties to and managed staff in the Unit, and signed off on Audit Reports. I organised and was involved in meetings (Senior Management, Audit Committee, Local Government Auditor); the day to day business of carrying out audits, analysing data, etc.; liaising with and reporting/advising management from time to time, travelling and engaging with staff across the organisation at various locations. I assisted in establishing the current Audit Committee in 2014 in compliance with new statutory obligations which came into force at that time. I was the representative of the Respondent on the national group of Internal Auditors -Local Government Internal Auditors Development Group (LAIADG) and Chair of the Eastern Midland Region, a sub-committee of the group.

4.      I raised the issue of my unique position with my employer on an informal basis, on a number of occasions, confident that – as it was clear that my actual role and function was that of the Internal Auditor (grade 7) I should be paid at a rate appropriate to that role and function. I requested that y actual work-role within the Unit be recognised and the pay appropriate to that work be applied.

5.      The employer did not agree and cited various factors: initially a period of three months should lapse, the economic downturn and the Croke Park Agreement, the public-sector embargo and sanction required by the Minister for the Environment as impediments to a favourable decision at that time, but would keep it under review.

My Case:

1.      “It is a fundamental principle that employees are paid for the work that they actually do; in circumstances where there are agreed rates for various grades within an employment, the appropriate rate that should apply will be that which is established as objectively applying to any employee whose habitual duties fall within the scope and range of a particular grade. While it is acknowledged that strict demarcation lines between roles, tasks or functions are impossible to set in absolute terms – while a CEO may make a photocopy for him/herself, it doesn’t necessarily follow that they should be paid at an administrative level – the common pattern of work habitually assigned and performed is the proper, objective determining test.

2.      I was assigned to the Internal Audit Unit and was happy to perform those duties assigned to me by my employer from the outset. Though my actual role changed following the retirement of the Internal Auditor (Grade 7) I took up the tasks assigned to me.

3.      From the outset it became clear that my broad duties were completely interchangeable with those of the Internal Auditor (Grade 7) it was patently unfair for the employer to continue to require me to share in all the obligations, responsibilities and duties associated with that work and remain excluded from the rates of remuneration that properly apply to their performance.

4.      I submit that the actual role I performed within the Internal Audit Unit is one associated with duties and responsibilities of the Internal Auditor (Grade 7), a grade which exists in the administrative structure of the Council and with recognised remuneration on the pay scale.

5.      I submit that there is precedence established grounding the above claim – Labour Court decision 14th May 2012, Appeal Decision No. AD1242 (HSE West -and-a Worker).

6.      I submit that the precedence established was further in practice by the WRC Adjudication Hearing reference ADJ-00000833 (A Clerical Officer v A Local Authority).

Summary and Conclusion

I submit that a claim for the appropriate agreed rate of pay for work actually performed does not represent a “cost increasing claim” as understood in national agreements – the Labour Court has been consistent in its determinations in this regard – and that the employer should pay me the rate that should have been applied to my service in the Internal Audit Unit from June 2011 to 16th February 2016. I respectfully submit that given the above, that you find in favour of this submission”.

The following points are taken from the Respondent’s submission to the WRC.

The Complainant has been employed by the Respondent since 03/12/1979, he was appointed to a Senior Staff Officer level (Grade 6) in 26/03/2001 and since that date has worked in that capacity in a number of different sections. The Complainant worked in the Internal Audit Section from 2010 until 15/02/2016 and this claim relates to that period.

During the period in question the Administrative Officer (Grade 7) retired on 18/08/2011 and the vacancy created by this retirement was not filled.

The Complainant is suggesting that that he carried out this higher role from 18/08/2011 to 15/02/2016 without payment and is seeking to be paid at the higher Grade 7 level for this period. He did not seek payment of this higher grade at any time during this period but rather waited for a period of 20 months after he left the Internal Audit section before submitting the claim. The claim for the higher payment was received 27/10/2017 and it is being suggested by the Complainant that he was the “defacto” head of the Internal Audit Section.

By letter dated 06/11/2017 the claim was rejected for the following reasons:

1.      For the period from March 2009 to 2016 a staff embargo was introduced by Government as part of a range of measures to deal with the financial emergency. The vacancy created by the retirement of the Administrative Officer on 18/8/2011 along with many other vacancies created by retirements were left unfilled. The Complainant was not asked to carry the workload or responsibilities arising from this vacancy.

2.      As indicated, there were a number of vacancies across the organisation (approx. 400) including the Administrative Officer Grade 7 Internal Audit left unfilled. A small number were filled on an acting basis with Government approval.   To secure government approval to fill a vacancy it was necessary to show that the vacancy must be filled on an acting basis for statutory or regulatory reasons. The vacancy in Internal Audit did not satisfy these criteria and was not filled on an acting basis.

3.      The responsibilities of the Administrative Officer Grade 7 were not carried by the Complainant, in other words, they were not assigned downwards to him. The responsibilities of the Administrative Officer who retired were carried upwards by the Senior Executive Officer (Grade 8) to whom the retired Administrative Officer had reported to and indeed the other staff including the Complainant also reported to the Senior Executive Officer also. The Complainant seems to have forgotten that the Administrative Officer to whom he reported to was not the Head of the Internal Audit Section but rather reported to the Senior Executive Officer (Grade 8) who in turn reported to the Director of Corporate Governance (Grade 9) who is de facto and de jure Head of Internal Audit. The Complainant’s claim is totally misconceived.

4.      In the years 2013, 2014 and 2015 the External Auditor in his Audit Report for each of these years commented that the output of reports from the Internal Audit Section when the Complainant was the Senior Staff Officer was inadequate and of limited value to him.   These comments by the External Auditor demonstrate that the work formerly being carried out by the retired Administrative Officer was not being carried out by the Complainant. The Complainant was reassigned out of the Internal Audit Unit in February 2016 and an Administrative Officer was assigned to the Unit. In her first year in the role ie. 2016 she produced a 3-year strategic plan and the number of reports produced by the Unit trebled and continued to increase in 2017 clearly demonstrating that she was functioning as an Administrative Officer and the Complainant was not nor was he expected to by his employer.

5.      The Complainant does not possess accountancy or third level audit qualifications. He is employed as a Senior Staff Officer (Grade 6) who happened to be assigned to the Internal Audit Unit for a period of time in his long career. As can be seen, during this period he did not function in the higher Administrative Officer Grade 7 as suggested by him nor was he requested to do so. This responsibility was carried by the higher Senior Executive Officer for the period.

6.      The Complainant or his union quite correctly did not submit a claim to be paid the higher Administrative Officer (Grade 7) rate during the 4 ½ years he was assigned to the Internal Audit Section.   Instead, he himself has sought to make a claim 20 month after he has left the Section. The Respondent views this claim as merely opportunistic and he is attempting to reconstruct history to accord with a perception that supports his misconceived claim rather than the reality which prevailed and was articulated in the External Auditor’s successive reports of 2013 2014 and 2015.

7.      If the Respondent had decided to appoint an Acting Administrative Officer in Internal Audit when the incumbent retired in 2011, this acting promotional post would have been advertised amongst all staff in accordance with our transparent promotion procedures. The Complainant could have submitted an application for consideration in response to such an advertisement but so would other staff members and competitive interviews held and there would have been no guarantee that the Complainant would have been successful. In effect, what the Complainant is asking of you is to accept his mistaken and belated perception that he was while in the Internal Audit Section performing the duties of the higher Administrative Officer role and to ignore the Respondent’s transparent promotion procedures and award him an acting Administrative Officer role for the period 18/8/2011 to 15/2/2016. In an earlier Adjudicators Decision ADJ 6049 approved by the Labour Court, the Adjudicator indicated that this is not the role of an Adjudicator for compelling reasons outlined in the decision.   This claim from the Complainant is misconceived and merely opportunistic. In any event, a decision had been taken not to appoint an Acting Administrative Officer and the Complainant was never requested to fulfil this role.

8.      There is no evidence to indicate that the Complainant was treated unfairly or unreasonably while assigned to the Internal Audit Unit from 20120 to 2016 as a general Senior Staff Officer. A vacancy occurred at a higher Administrative Officer level from August 2011. The Respondents were unable to fill the vacancy because of a staff embargo.   The Complainant was not asked to carry the responsibility of the former Administrative Officer and did not do so. The consequence of not filling the vacancy was commented upon adversely by the External Auditor in 2013, 2014 and 2015 thus confirming that the Complainant was not carrying out the role. There is no merit in his claim.

Firstly, I would like to thank both parties for the professional way in which they conducted themselves at hearing and to thank them for their very detailed submissions.

Whilst considering the positions of both parties I believe I have taken everything into consideration and would comment as follows:

1.      Why did the Complainant wait for a period of 20 months after transferring from the Audit Section before making a formal complaint to the Workplace Relations Commission?

2.      As attachments to its submission, the Respondent has included comments from the External Auditor in 2013, 2014 and 2015, such comments include the following:

2013 – Report

“….. the head of the internal audit section should be a qualified member of one of the recognised accountancy bodies or the Institute of Internal Auditors”.

2014 – Report

“For an authority the size of xxxxxxx the output of Internal Audit was most unsatisfactory”.

2015 – Report

“The output of the section is inadequate having regard to the size of the xxxxxxx and I was unable to place any reliance on the work undertaken by the section in the planning of my audit”.

These comments are negative and would suggest that there was no one in any position managing the function on a day to day basis.

3.      With every job description there is an outline of the tasks to be performed, these are often referred to as responsibilities. In addition to the responsibilities there are accountabilities – when I raised this point at the hearing it was clear that the Complainant had no accountability for the activities of the internal audit section nor was he held accountable by more senior management.

4.      There was an embargo on recruitment and had this not been the case I’m quite sure the position at Grade 7 would have been advertised in line with the Respondent’s recruitment policy and a successful candidate appointed.

I find it very difficult to disagree with the arguments presented by the Respondent and it is for these reasons I find the complaint is not well found and therefore fails.

As outlined above.

Acting- up allowance.