Complainant

Respondent

Anonymised Parties

An Employee

An Insurance Company

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-00010215-001

14/03/2017

The respondent has employed the complainant as an underwriter Level 6 since April 2009. The dispute concerns the withdrawal of an upgrade to Level 5 with effect from 1st of October 2015.     The parties made written and oral submission to the hearing.

The complainant submits that he has constantly received positive performance feedback from the respondent throughout his employment. He was informed on the 5th of August 2015 that he would be upgraded to Level 5 with appropriate pay increase (€2,950 pa) with effect from 1st of October of that year. On the 27th of August the Head of Operations informed him that the respondent had decided to revoke the proposed increase in level and salary. The matter was appealed and rejected through the internal grievance process.                                                                                                            The complainant included a signed statement in the matter from a female colleague who stated that she had spoken to the Head of Operations on the 5th of August 2015 and that he confirmed that two of her colleagues were upgraded as part of Project Diem Pay and Rewards. She met with him and the HR person on the 17th inst. and enquired as to why she had not been awarded a grade increase based on her work and tenure. He confirmed that the matter had been considered with HR and the two individuals would be upgraded. She was under the impression that grade was aligned to role and that therefore she should be similarly upgraded and that she could only consider anything less as Gender Discrimination. She met the respondent’s representatives again on the 27th inst. and the Head of Operations explained that insofar as all members of the team were performing the same roles a mistake had been made and that all team members would be Level 6. She was extremely uncomfortable with this position as it meant her colleagues would be reduced on the basis that she disputed her Level.

The respondent submits that it undertook a significant restructuring of its business model in 2015 under the heading of Project Diem. All roles were mapped and evaluated with a view to align roles within the wider group. In the complainant’s case his team was to be split between technical underwriting and pure service roles. He and a colleague were identified as suitable for the technical underwriting roles which would attract an increase to Level 5. At this point a new operations manager was in the process of being appointed and a decision was taken to stall the process until he had an opportunity to review the overall site business. “ultimately, the team restructuring never took place, and so the proposed mapping of the Complainant’s role from Level 6 to Level 5, and the consequent rise in salary, never actually took place.” When the error was discovered it was notified to the complainant. He unsuccessfully raised a grievance internally and in accordance with the procedure referred the herein complaint.                                                                                                      The basis of the complaint arises from an administrative error. The proposed increase was envisaged as part of a restructuring which ultimately did not take place. The letter of 5th of August 2015 “was issued inadvertently in ignorance of the fact. Therefore, at law, there is an operative mistake as to a fundamental characteristic of the offer and it must be void ab initio. Further, and in the alternative, there was no intention to create legal relations in the manner dictated by the letter and therefore no amended contract can exist.”

The letter confirming the new Level 5 and increase of salary dated 30th of July 2015 makes no mention of a technical underwriting role or restructuring of the team but alludes generally to the complainant’s current role falling within the standard salary range (tab B respondent’s submission). There is no mention of role title in that letter but the next letter (tab C respondent’s submission) mentions that all roles meet the criteria for level 6. It is not clear that the proposed increase to Level 5 arises from a restructuring of the complainant’s team and the creation of two separate roles within the team and is therefore totally inconsistent in my view with the explanations subsequently provided to the complainant. Nevertheless, those subsequent explanations are the only ones which appear to make sense. The statement of the complainant’s female colleague is instructive in this regard.

Be that as it may I am not in a position nor is it my role to dictate to the respondent as to how it should structure its operation. There is merit in the dispute from the complainant’s point of view to the extent that the “mistake” for want of a better or less judgemental description will have had a devastating effect and merits in all the circumstances described somewhat more than the apology made.

I recommend that the respondent make a payment of €3,000 (say three thousand euro) to the complainant by way of restoration of good faith between the parties on the one hand and the amelioration of the disappointment created on the other.