ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00010119

Parties:

Complaint:

Date of Adjudication Hearing: 24th April 2018

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 andfollowing the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

SIPTU were in dispute with the Employer in relation to the question of the pay rate/grade of the Complainant.

Summary of Trade Union Case:

SIPTU said this case concerns the Complainant’s case that she be regularised into a post as Chef Grade 1 which she has been undertaking regularly since 2004.

SIPTU said the Complainant commenced employment with them at a named location on 30th June 1997.   They said that while her formal contract was as a Health Care Assistant, her contract was later altered to that of Catering Assistant.   SIPTU said that her current rate of pay is €32,409 per annum, €15.698 per hour.   SIPTU said that the Complainant has also undertaken the role of Chef 1, since 2004.

SIPTU said the Complainant enjoyed this role and she decided of her own initiative and expense to train as a Chef and to secure the necessary qualification in this filed.   Once the Complainant had secured the necessary exams to so do the Employer gave her €300 towards costs sustained by her.

The Complainant has continued with her self-development to ensure that she provides the best possible service to the service users and she is currently studying Primary Food Hygiene.   SIPTU said the Complainant was employed by the Employer in this role on a continuous basis from 2004 to 2006.   She was verbally advised by the Employer in July 2016 that she would receive an appropriate rate as Chef 1 for undertaking this role and duty she has never receive this.

SIPTU said that this commitment was in compliance with the Employer’s own policy in their HR Circular 017/2013 which confirms that a person ‘Acting Up’ will receive the higher rate of pay upon completion of 3 months undertaking the role.   The Complainant continued to seek the payment writing to the Area Manager and she even contacted the National Director of HR and the local HR Manager on at least two occasions, namely 16th January 2017 and 30th January 2017 and again on 8th February 2017.

SIPTU said that the Complainant understood that the matter was resolved following the good efforts of a named Industrial Relations Officer, but unfortunately the Employer failed to make the necessary payment.

SIPTU said that following the unfortunate illness of the person who holds the Chef 1 role as his substantive post the Complainant again undertook the role from 2013 for two years.   The substantive post holder returned to employment in 2015, but did not resume kitchen duties and was redeployed.   SIPTU said that since that date the Complainant and another employee have continued in the role with neither of them securing the appropriate pay rate for doing so.   SIPTU said the Employer are failing to pay the Complainant at the appropriate pay rate as they are arguing that she shares the role with a colleague she does not undertake it on a continuous basis and she thus fall foul of the requirement that an employee undertake a role for 3 continuous months to secure the appropriate pay.

SIPTU said that as all informal mechanisms had failed to secure progress on the matter, the Complainant was forced to submit a grievance on the matter.   SIPTU said that however the Employer refused to hear it.   The Complainant responded on 30th May 2017, seeking clarification and cautioning that if the Employer failed to adhere to their own Grievance Procedure she would be left with no option but to seek the assistance of the WRC.

SIPTU submitted that the same pay scale should apply in respect of the Complainant’s employment as a Chef 1 in the employment as applies to other chefs working at the same grade with the Employer.   SIPTU said that to do otherwise is contrary to the fundamental principle of having equitable terms apply to employees doing the same work for the same employer and they said this principle of equity is enshrined and given express effect across employment legislation.

SIPTU said they were seeking that the Complainant receive all outstanding payments due to her and that in addition she be awarded compensation for this unacceptable failure to address this matter in a reasonable time frame.

SIPTU submitted that in order to give effect to equitable terms and conditions applying in respect of her position as Chef 1 at the named location, that the Complainant be paid all retrospective payments due to her and that she not be disadvantaged by the mechanism by which the Employer rosters her to undertake the duties involved.   SIPTU said that in this respect the Complainant is seeking that the Employer regularises her into the post she has been successfully undertaking with a colleague continuously since 2013.

SIPTU and the Complainant submitted that the complaint/claim is well founded and they sought that it be upheld.

SIPTU submitted copies of the pay scales involved.

Summary of Employer’s Case:

The Employer said that the Complainant has worked for them since 30th June 1997.   They said she was originally employed as an Attendant, but this title and role changed in later year to Multi Task Attendant (MTA), a role that by it’s very description allowed for her to work across cleaning, catering etc.   She was made permanent on 8th February 2001 and she is paid at MTA pay rate.

The Employer said that the Complainant moved into the Kitchen in a Catering Assistant role a number of years ago.

The Employer said that on 7th March 2016 and again on 30th June 2016, the Complainant along with another colleague wrote to them seeking the application of HR Circular 17/2013 that she be paid as a Cook Grade 1, a post she was ‘Acting’ in.   The Respondent said the Complainant works in this post opposite a colleague is a similar position.  

The Employer said that the Circular states that when somebody has acted in the post for 3 months plus they should be paid the rate for the job that they are doing.

The Employer said that as the Complainant was not performing the role for 3 months consecutively as provided for in the Circular her request was refused in accordance with the provisions of the Circular and they said that this continues to be the case/position.

The Employer said that SIPTU raised the matter at a Union/Management meeting on 20th April 2016, claiming that the Complainant should be regularised in the post of Cook Grade 1.   The Employer responded that while the Complainant continued to cover the post of Cook 1 they were not in a position to make her permanent in that position as the substantive post holder was on a rehabilitative journey back from sick leave and could return to his substantive post at a future date, therefore no permanent vacancy existed and the Employer said that a colleague in an identical position works opposite the Complainant.

The Respondent said that on 19th May 2017 the Complainant took a grievance against them that she was on the incorrect pay scale.   The Respondent said the Complainant receives an Acting Allowance for the days she works as a Cook 1.

The Employer said it is their position that the Complainant’s claim for regularisation in the role of Cook 1 cannot be considered for 3 reasons.

1. No permanent vacancy exists
2.  
3. If the current post holder resigned or retired there is no mechanism to ‘regularise’ the Complainant in the role.   It would have to go to open competition in line with the Employer’s Recruitment Licence.
4.  
5. The Complainant is not suitably qualified to apply for the post of Cook Grade 1.   While she holds an NVQ Level 3 in Food Preparation and Cooking from the North West Institute in Derry, the required qualification for a Cook Grade 1 is National Certification Training Board.

The Employer emphasised that they had no problem with the quality of the cook work performed by the Complainant and that she was a valued member of staff and they were sympathetic to her claim.   But they said that rather it was the case that in the circumstances of the instant case and due to the requirements of the HR Circular 17/2013 it was not possible to accede to the Complainant’s claim.

Findings, Conclusions and Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a decision setting forth my opinion on the merits of the dispute.

I note that the Complainant has been performing the work of Cook Grade 1 since 2004 and on a continuous basis on a regular and rostered basis since 2006 to the complete satisfaction of the Employer (this is a very considerable period of time).   I note that the Labour Court have held on numerous occasions that a person who has been performing a role for a lengthy period (3 year or more) should be appointed to the role and paid the rate appropriate to that role.     It is not reasonable to expect the Complainant to continue to perform the role of Cook Grade 1 without the pay and conditions that apply to the role.

I further note that there is considerable goodwill towards the Complainant by the Employer and a genuine understanding of her position and a genuine wish to resolve the matter to the satisfaction of both parties.

However I also note that there a genuine problems with resolving the matter, including the HR Circular and the position of the substantive postholder.

In all the circumstances I recommend that the parties (if they have not already done so) enter into immediate meaningful negotiations with a view to resolving the matter and allowing the Complainant to be paid the rate for the work she performs as a Cook and that these negotiations should be concluded within a period of 5 weeks.

I so recommend.

Dated:   31st July 2018.

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Key Words:   Pay Grade