Complainant

Respondent

Anonymised Parties

An Examinations Officer

A Public Medical Regulatory Body

Representatives

 Forsa Trade Union

  IBEC

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-00018538-001

16/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00018538-002

16/04/2018

The issues in contention concern the mechanisms for the grading of an Administrative Worker by a Statutory Government Agency and a related Employment Equality Act,1998 claim of Discrimination on grounds of Gender in relation to a recent regrading decision.

1:1         Industrial Relations Act, 1969 Complaint - CA-00018538-001

The Complainant commenced employment in September 2001 as a Grade IV Administrator. Over the years since then her workload has increased significantly. Despite numerous request for a Job Evaluation this has been refused to her. The case was examined by a Rights Commissioner in 2011 who Recommended (r-09704-ir-10TB) that the Job Evaluation take palce. Regrettably no real progress ever took palce. Correspondence from her union FORSA, formerly IMPACT was also largely ignored. In recent times a male colleague was regraded to a Grade VI position without any recourse to internal competition.

FORSA or IMPACT as it then was sought to advance, in October 2017, the claim for a Job Evaluation via the Conciliation Services of the WRC. The Agency acting on the advice of the parent Government Department declined to participate in Conciliation.

Accordingly, the Complainant and her union -FORSA are seeking an Adjudication Recommendation that the Agency concerned immediately agree to introduce a Job Evaluation Scheme for the organisation.

1:2         Employment Equality Act, 1998, Complaint. - CA-00018538-002

In February 2018 a male colleague of the Complainant was regarded from a IV position to a VI position without any open competition. It was clearly discrimination against the Complainant, a female, on the grounds of Gender.

Compensation for this gender discrimination is sought.

2:1         Industrial Relations Act, 1969 Complaint - CA-00018538-001

The Agency concerned is a Statutory Body set under the auspices of the Central Government Minister.

It was accepted that initial contacts reading a Job Evaluation scheme in keeping with national norms took place with the Union. This included the 2011 Rights Commissioner Recommendation. Correspondence was exhibited in evidence. However, the process had to come to an end when Formal Sanction for the exercise was withheld by the Central Department.

There was no intentional disrespect to either the Union or in this case the Officers of the Conciliation Service.

However, the Agency commissioned in December 2016 an ICT Gap Analysis report on the entire Organisation. A major 73-page report was produced and this lead to the submitting of a formal business case to the Department in late 2017 for a number of Organisation changes and regraded appointments.

This was approved, following discussions, by the Minister and a grade VI position was sanctioned in the IT area (effective from early 2018) and a Grade V position in the Complainant’s area. The positions were filled by the upgrading of the occupants (one of whom was the Complainant) of the existing positions.

While a formal Job Evaluation exercise would not be objected to in principle at this stage the Respondent queried as to what merit it might have at this juncture following the ICT Gap Analysis and the Formal Business case which had secured regradings.

2:2         Employment Equality Act, 1998 Complaint. - CA-00018538-002

The claim here has no prima facie basis. The vacancy in question was for a Specialist IT person, an area that the complaint has no experience in or expertise of. The successful regraded candidate had been in the position for a number of years and had all the necessary expertise required. Gender was not an issue here.

From staff communications this situation was well-known to all staff and there could be no question of Discrimination as defined in the Equality Acts or a discriminatory appointment.

A number of leading legal decisions were cited in support of the Respondent’s position.

The Complainant has failed to provide specific evidence of a prima facie discrimination and her claim must fall on these grounds alone.

3:1         Industrial Relations Act, 1969 Complaint - CA-00018538-001

This is an unusual complaint. The end result sought by the Complainant and her colleagues namely a regarding has been achieved albeit not by the traditional means sought by the Union.

The Agency involved is small and is effectively a “niche player”. It is under the auspices and it appears close control of a Central Government Department. The Union requests for engagement with the Respondent via WRC Conciliation service were it appears not sanctioned at Department level.

The copy E mail of the 2nd November 2017 from the Central Department was, in my view, surprising and certainly would not appear, on first reading, to be in keeping with overall Public Policy of positive engagement with Public Sector Trade Unions and the Industrial dispute resolution mechanisms of the State.

However, the old adage that “there are more ways than one to skin a cat” seems to have been adopted by local Agency management and via the ICT Gap Analysis plus follow on Business Case they achieved considerable positive results.

This was a significant local Management achievement and represented, I felt ,very skilful manoeuvring against a background of a national situation well know for bureaucracy and complexity in decision making.

The only major downside of this success was the appearance given of effectively regulating the Union to a lesser place and some, it appeared, probably inevitable short comings in staff communications.

Consequentially it appeared to me the staff concerned, and their Union FORSA have continued to seek a formal Job Evaluation process.

The Local management at the Hearing indicated that they have no objection in principle to the Job evaluation exercise, subject of course to Departmental sanction.

Accordingly, under the Industrial Relations Act,1969 I recommend as follows.

1.       The Union and Local Management formally agree to meet and consider the local situation as it currently stands post the ICT analysis and the business case regradings.

2.       The first item on the Agenda should be the question of the Job Evaluation exercise and the question as to whether or not it is now worthwhile post the ICT analysis. Would it simply be a repetitive exercise ?

3.       If Agreement cannot be reached on this point (I would find this most disappointing) the Job Evaluation question can be referred, on an agreed basis, to the Conciliation Services of the WRC as it is effectively a “Collective/Body of Workers” dispute not really appropriate for the Adjudication Services.

4.       Following on from the local Union/Management engagement above efforts should be made to disseminate information to the staff regarding the meetings. However, as the numbers of staff involved in the Agency are very small this can be done informally.

3:2           Employment Equality Act, 1998 Complaint. - CA-00018538-002

The Employment Equality Act complaint is inextricably linked to the Industrial Relations Act complaint.

None the less the standard rules of an Employment Equality Act complaint must apply.

The principal rule is the primary establishment of the Burden of Proof of Discrimination following from Section 85A of the Act. This is often referred to as the requirement on an employee /Complainant to establish a Prima Facie case from which it can be reasonably inferred that discrimination took palce.

Significant case law exists in this area and the Valpeters v Melbury Developments Ltd (EDA 0917) case is often cited as a headline case.

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In this case the primary ground of complaint was the fact that the Grade VI regrading had benefitted a male colleague. This was despite the unmistakable evidence that the office holder was the most appropriate candidate for an upgrading in the IT Department. The office holder was by a long margin the best qualified candidate. The sex of the office holder did not appear to be a factor at all.

Accordingly, I had to find that the requirement on the Complaint to establish a prima facie case of Discrimination was not satisfactorily met. The Equality case is dismissed.

Act

Complaint/Dispute Reference No.

Summary Decision. Please refer to Section Three above for detailed reasoning.

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

CA-00018538-001

A series of Recommendations made as outlined in Section 3:1 above.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00018538-002

The case fails due to the lack of a proper Prima Facie case of Discrimination.