ADJ-00009327

Complainant

Respondent

Anonymised Parties

A Lecturer

An Institute of Technology

Act

Dispute Reference No.

Date of Receipt

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

CA-00012181-001

29/06/2017

The complainant has brought a grievance against the respondent through the nationally agreed grievance procedure for the institute of technology sector without a suitable resolution being reached. The grievance relates to the timing and procedure for the progression of the complainant from Assistant Lecturer grade to the Lecturer grade, and payment of possible reimbursement of back money she claims that she is owed.

The respondent claims that the complainant has no automatic entitlement to move from Assistant Lecturer grade to Lecturer grade and likewise from the Assistant Lecturer pay scale to the Lecturer pay scale.

The complainant commenced employment with the respondent on 1 September 2007 in the position of Assistant Lecturer. The complainant has brought a grievance against the respondent which relates to the timing and procedure for the progression of the complainant from Assistant Lecturer grade to Lecturer grade and the payment of possible reimbursement of back money she claims that she is owed.

The grievance was not resolved at stage 3 of the internal procedures. The complainant has therefore lodged stage 4 of the procedure with the Workplace Relations Commission. The complainant is seeking,

(a)    Retrospective payment of wages owed arising from placement on the wrong salary scale and payment from the increments outstanding.

(b)    Compensation for anxiety and stress caused by the employer’s failure to resolve the grievance in a timely manner.

She claims that on 15 April 2016 she was informed by HR that she was on the wrong pay scale (Assistant Lecturer scale instead of the Lecturer scale) and that she was owed back pay. The complainant claims that the respondent has admitted to the error and has placed her on the correct salary scale and increment point (point 4 of the Lecturer pay scale) in May 2016. On 18 May 2016, the complainant received an email to say that she had now been placed on the correct pay scale, and she also received a breakdown of the retrospective salary owed for each year and that she would receive the arrears due to her within 2 to 3 months. She said the respondent detailed a formula for the calculation of the arrears owning. The complainant claims that after a number of calls and emails to the respondent seeking information about the payment of the arrears owing, she was informed on 6 January 2017 that the arrears were blocked by the respondent’s Financial Controller. The complainant claims that she had a legitimate expectation that she would have received that payment.

The complainant said that her grievance with the respondent has been going on for some time and it has caused her great anxiety and stress. The complainant claims that she has now been placed on the correct salary scale but is owed for the loss of wages since she was not placed on the correct pay scale back in 2012. The complainant claims that she is owed retrospective payments for the difference between the increments she received being paid as an Assistant Lecturer compared to what she should have received as a Lecturer for the years 2012-2013, 2013-2014, 2014-2015 and 2015-2016.

The complainant claims that she was not on full hours during that time and therefore based on the respondent’s own formula she has submitted the estimated amount of retrospective pay that is owed to her from 2012 until 2016, when she was placed on the correct point on the Lecturer salary. The complainant maintains that the difference between what she was owed and paid is as follows;

Incremental Point 1 on year 1 (1/10/2012) = €2,355 owed,

Point 1 on year 2 (1/03/2013) = €1,758.5 owed,

Point 2 on year 2 (1/10/2013) = €4,332.6 owed,

Point 3 on year 4 (1/10/2015) = €6,303 owed and,

Point 4 on year 5 (1/01/2016) = €1,939 owed.

The complainant is seeking full payment of wages outstanding for not having been placed on the correct salary scale, which it has calculated at €16,687.00, plus compensation for the hurt, stress and anxiety caused by the respondent’s mistake and the time it has taken to resolve same.

The complainant provided an exchange of emails between herself and the respondent in evidence and claims that in summary that it was the respondent that told her that she was on the wrong salary in 2016. The complainant said that the respondent placed her on the correct pay scale and incremental point in 2016 and told her that she would be paid retrospective payment. The respondent has subsequently reneged on its own proposed solution and has acted unfairly and in bad faith by refusing to adhere to its own proposal.

The respondent claims that the complainant commenced employment with it on 1 September 2007 in the position of Assistant Lecturer on a salary of €41,097 on a pay multiplier of 0.4611 meaning her gross annual salary was €22,443.48. She was issued with a contract of indefinite duration for the position of Assistant Lecturer effective from 1 September 2011.

The respondent claims that an Assistant Lecturer may apply to progress to Lecturer grade on (i) completion of 5 years teaching experience and having obtained a masters qualification or, (ii) on completion of 3 years teaching experience and having obtained a PHD qualification. The respondent said that historically it would consult with an Assistant Lecturer who would appear to meet the relevant criteria and suggest that they apply for progression, should they wish to do so and should they meet the necessary criteria.

The respondent refers to the complainant’s contract of employment at clause 7, where it deals with the “Progression”, and where it states that “Assistant Lecturers will progress to the grade of Lecturer on completion of one years’ service after having reached the maximum of the Assistant Lecturer scale, subject to a minimum of five years’ continuous service in the grade, subject to ability, experience, academic qualifications, scholarship and demonstrated performance. Possession of an appropriate defined post graduate qualification or equivalent requirement shall normally be considered an essential requirement. … The instate may require five years’ service in the institute before progression is considered.   Assistant Lecturer with a PhD and relevant research experience may be considered for progression after three years continued service. If successful, such an Assistant Lecture may be placed on the first point of the Lecturer scale and remain on that point until five years’ service has been completed…” (note the respondent’s emphasis above).

The respondent claims that while this clause in the complainant’s contract provides that she, as an Assistant Lecturer, will progress to the grade of Lecturer, that progression is subjected to meeting the required level of experience and qualifications, and is also subject to her ability, scholarship and demonstrated performance. It claims that the language used in the contract, such as “if successful”, clearly envisages that an Assistant Lecturer is required to apply for the progression.

The respondent also points to Circular IT 03/05 dated 19 April 2005, which is the Department of Education and Science circular that deals with the progression of Assistant Lecturers to Lecturers grades, where it claims that the language used in relation to progression expressly refers to “an application”. A further clarification note was issued by the Department dated 15 November 2007 regarding “guideline in assessing [progression] applications”, which again reinforces the need for an application to be made for progression.

The respondent stated the Circulars set out the application procedure to progress from Assistant Lecturer to Lecturer grade, namely, an application is made in writing to the HR manager and should set out in detail the basis for the request and should include supporting documentation. The respondent claims that the HR manager should then verify their credentials and would seek a report of the candidate’s performance. They would then be assessed in accordance with “established procedures” and if successful, should be recommended for appointment to the Lecturer grade by the respondent’s governing body and it is at this point the candidate would be informed of the decision on his/her progression. The respondent claims that “a positive step” is required and there is no automatic entitlement to progress to the Lecturer grade simply on attaining the relevant experience and qualifications.

The respondent maintains that the relevant Circulars on progression were already in existence when the complainant commenced employment with it and formed part of her terms and conditions of employment. The respondent also stated that the Circulars were discussed and approved by the respective trade unions at a national level, and were in place before the complainant joined the respondent.

The respondent referred to the Labour Court recommendation in Beaumount Hospital V A Worker (CD/17/75) (Recommendation No. LRC 21453), in relation to additional increments based on prior relevant service attained with another employer where the Court recommended that the incremental credit that should apply to the contract of employment must be viewed in the context of a National Agreement which was intended to apply to it. Also, that the impugned clause that the employee sought to rely upon was a genuine error and should not be strictly enforced. The respondent said that by applying that rational to the case at hand any alleged custom and practice that the complainant claims was in force, which it denies, clearly goes beyond the term of the relevant Departmental Circular and should not be strictly enforced.

The respondent states that the complainant did make contact with the HR department until 25 April 2016 to enquire about her entitlements to progress to a different scale and she was told that she was required to submit a copy of her Master’s degree, which it claims demonstrated that there was an onus on the individual staff member to apply for progression as it was not an automatic right. The respondent claims that having provided the necessary copy of her Masters and following a review of her teaching experience the respondent was satisfied that she met the criteria and was entitled to progress to the Lecturer grade. She was subsequently placed at point 4 of the pay scale. The respondent admits that a HR officer incorrectly stated that progression was effective from 1 October 2012 on the first point of the scale and incorrectly referred to payment of arrears of salary. It said that the complainant only contacted HR about her entitlement to progress in April 2016 and the email correspondence sent by the HR officer was not approved by the HR Manager. The respondent states that this error was communicated to the complainant in a meeting with her in February 2017. The respondent made an offer to the complainant to try to get a resolution which was rejected.

The respondent did accept that a number of years ago, certain arrangements were made with a limited number of individual Assistant Lecturers who progressed to the Lecturer grade sometime after they were technically eligible to apply for consideration for progression. However, the respondent said that this does not amount to an established practice and policy within the respondent. It claims that no such similar arrangements have been entered into in the past 3 years and this is contrary to the Institute’s own local policy on the issue, which was implemented in February 2017 and this would also be contrary to the Departmental Circular in force since 2005.

The respondent suggests that in order for the complainant to succeed in her claim she has to establish that there was a local custom and practice in place of automatic progression, and an implied term in her contract of employment which is contrary to the Departmental Circular and her actual contracts of employment heretofore.

The respondent claims that the complainant progressed to point 4 of the Lecturer pay scale in May, 2016 following her application and following the respondent’s approval. It is the respondent’s claim that the complainant is not entitled to reimbursement of wages as claimed as she had no automatic entitlement to progress from the Assistant Lecturer to Lecturer grade.

I have considered both party’s submissions regarding this claim, I noted the two points of contention, namely, the retrospective payment of wages that the complainant claims that she is owed and compensation for the anxiety and stress suffered. I note that the respondent claims that there is no retrospective payment of wages owed and it has made an offer to make a contribution as full and final settlement of this grievance.

I have found that the complainant’s contract from 2011 has a “progression clause” included. However, that clause does not appear to provide for an automatic progression from Assistant Lecturer to Lecturer grade.

I note the respondent places great emphasis on the Departmental Circular IT 03/05 April 2005 which sets a guideline in how progression should be dealt with from Assistant Lecturer to Lecturer grade, and although it appears to allow flexibility in the “application, verification and reporting procedure” from Institute to Institute it appears to stipulate first and foremost that an application is a requirement. I note that this Circular would have been in force prior to the complainant joining the respondent.

I have found that the complainant was notified by the respondent of her qualifying for progression from Assistant Lecturer grade to Lecturer grade and she decided to follow that up formally. The respondent seems at that point reluctant to engage with the complainant and a period of uncertainty ensues. This, I expect, was a very frustrating period of time for the complainant, particularly when it would appear that it was the respondent’s HR department who had initially informed her of the progression opportunity. I note where the respondent has said that a HR officer in its department made an error by informing the complainant that she was entitled to recoup retrospective payments and this is really at the centre of this dispute. The complainant’s expectation was that she is entitled to recoup retrospective payments.

I accept that the respondent has said that certain arrangements were made with a limited number of individual Assistant Lecturers who progressed to the Lecturer grade sometime after they were technically eligible to apply for consideration for progression. However, the respondent said that this does not amount to an established practice and policy within the respondent. It claims that no such similar arrangements have been entered into in the past 3 years. This practice is now contrary to the Institute’s own local policy on the issue which was implemented in February 2017 and contrary to the Departmental Circular in force since 2005.

I expect that any applications for progression from Assistant Lecturer to Lecturer grade from February 2017, - with the introduction of the Institute’s own local policy - will be easily remedied by reference to this policy into the future. I accept the respondent’s position that no staff automatically moved to the Lecturer career scale and that some intervention from HR/Finance was required. However, I have to consider what was the custom and position in the Institute at the time once the HR/Finance intervention was complete; was there an automatic expectation that the new Lecturer moved to the appropriate point on the Lecturer pay scale and was entitled to recover retrospective payment of wages owed from the point of meeting the criteria to progress.

I have found that there was a ‘mixed bag’ of arrangements in place and I imagine depending on who the complainant sought guidance from the information could have varied. This case in point is confirmed by the difference of opinion within the HR department itself, where a HR officer informed the complainant of certain entitlements, and provided her with the equations on what was actually outstanding to her. This situation is not satisfactory.

However, I am not satisfied that there was a fully developed policy and custom where Assistant Lectures progressed to Lecturer grade and legitimately expected to recover retrospective payment of wages owed from the point of meeting the criteria for progression. I am satisfied that this did happen in particular instances or at a particular stage in the past. I accept that it is not the case now, nor has it been for a number of years and I expect that from this point forward the position will be much clearer.

Notwithstanding the foregoing, I have found that the complainant was lead to the understanding by the respondent, albeit informally, that she was not on the correct pay scale and she sought to have that corrected. I note that she laboured to have that addressed. I expect her genuine expectations were for a full reimbursement to recover retrospective payment of wages.

I note that the respondent referred to the Labour Court recommendation in Beaumount Hospital V A Worker. I am satisfied that the facts of this dispute before me does not hinge on a genuine error as was the case in the Labour Court recommendation. I note that there is scope in the Departmental Circular guidelines in relation to the “application, verification and reporting procedure” from Institute to Institute.

I note that the two sides are some way from meeting with a mutually acceptable resolution to both parties to this dispute. I see that the respondent is adamant that it does not have to pay retrospective payments, however, it has offered a payment in good faith to try to resolve this grievance. I would recommend that the complainant would also move from its original position to allow to bring closure to this dispute.

Accordingly, and in particular noting that the current impasse between the parties and having found that the complainant was advised by the respondent that she was on the wrong scale, she lodged an application for progression with the respondent ahead of the new Institute’s policy on progression in February 2017 and she had lodged a valid grievance with the respondent also ahead of the new policy, and there was an unsettled practice in relation to progression historically which gave rise to confusion at the respondent.

I recommend that the respondent pays the complainant €7,800 which is a rough equivalent to the difference in pay between the two grades for a period of one year as a full and final settlement to the particulars to this case.

I recommend that a once off payment is made by the respondent to the complainant. I award the sum of €7,800 to be paid as compensation for all matters outstanding of this dispute. I make this recommendation as a full and final settlement of the claim.

This is an individual dispute and the recommendation is strictly pertaining only to the facts of this dispute at this point in time.

Industrial Relations Acts, 1969 - Lecturer pay scale – compromise – compensation