Complainant

Respondent

Anonymised Parties

Support Services Porter

Hospital

Representatives

Vivian Cullen SIPTU-Trade Union

Patrick Troy Ibec, Avril Lennon

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-00015668-001

08/11/2017

The Worker is employed since 2005. He was originally employed in Support Services but because of health-related issues he was relocated to administrative duties. He has been working in the Maintenance office in an administrative role since 2014. He is seeking that his job is re-evaluated in recognition of his daily work.

Summary of Worker’s Position

He was appointed into a Support Services role, CSSD in 2005. In 2008 he had spinal surgery and in 2012 he developed disc degeneration problems in the Lumbar region of his lower back. During this period he made many attempts at relocation to other positions because of his spinal injury and he applied for numerous administrative type positions but to no avail. In 2012 he was out sick for many months. He sought to return to work in some capacity. He was offered reception desk duties in September 2012. In October 2014, he was invited to work in the maintenance office one day per week and in Asset Management one other day per week. In April 2015, the manager sought to have his position regularised. In October, it was confirmed that his position would be regularised but with no change to his terms and conditions. He would be performing clerical administrative duties but on less favourable support services terms and conditions. HR advised him that they were not obliged to create a job for him. He wasn’t looking for a job to be created for him he was asked to perform these duties. It is his position that if you ask someone to perform certain duties there is a moral imperative as well as legislative one that your remuneration is appropriate to the job. He has been particularly flexible in his work and has been performing voluntary work as well for the hospital. He is only seeking fair play and equity. He is seeking that his terms and conditions reflect the actual reality. He has effectively taken over the running of the office from his comparator who is a Grade 5 and he should be on Grade 3. The Employer in the case of a Health Care Assistant was facilitated with a regrade. He is seeking that he is immediately upgraded to Clerical Administration terms and conditions and implemented retrospectively to April 2015 when he was recommended for this transfer.

Summary of Employer’s Position

The Worker commenced employment in support services CSSD. On 28th September 2012, he moved to reception duties on grounds of ill health. He has worked in Estates & Facilities department in an administrative capacity and retained his CSSD rate of pay of €38,870 p.a. The Clerical Officer Grade 3 role has a 13-point scale ranging from €23,121 to €38,724 for long service.

In August 2016, he sought to have his post in the Maintenance area of Estates and Facilities office regularised as a Clerical Officer Grade 3. He was supported by his manager. In September 2016, the Vacancy Review Committee (VRC) rejected the claim for a new post to be created and concluded that his substantive grade i.e. CSSD be regularised within the Estates & Facilities department until such a time as he leaves or retires from the service. In December, his union sought to discuss this outcome and raised a grievance. The outcome was that it was confirmed to him that he had been assigned alternative duties and moved to reception in the General Services department on a temporary basis on the advice of Occupational Health. This has evolved from reception duties to administration work in the office since December 2014 and he has been working in the Estates & Facilities office. Occupational Health reviews carried out in 2013 and 2014 concluded that he should not return to work in CSSD. During this time, he did not seek parity with the clerical and administrative grade due to the fact that at this time CSSD grade was paid a higher rate. It was pointed out to him that the Employer had reasonably accommodated him in returning to work and was not obliged to create a position for him. The VRC had red circled him in his current role.

The Employer has met its legal, contractual and moral obligations to him. They made reasonable accommodation on account of his health. By providing reasonable accommodation and by red-circling his terms and conditions they have acted in line with its own absence policy and return to work protocols and hospital custom and practice. He has been treated no differently than any other employee that has been reasonably accommodated on ill health grounds. If this claim was conceded it would undermine its procedures and render its decision making in such matters inconsistent. The process of reasonable accommodation as a means of enabling employees to return to work or continue to work would be fatally undermined. He has been afforded due process.

Findings & Conclusions

I note that the Worker developed health issues that meant that he was unable to perform his substantive role in support services.

I note that the Employer acting on the advice of Occupational Health reassigned him to reception duties and he subsequently has been working in Estates & Facilities office, which is an administrative /clerical role but he has retained on a red circled basis his terms and conditions of his substantive role.

I note that the Worker is not trying to affect the operation of reasonable accommodation but he wants to be rewarded for performing these duties by being realigned to the Administrative /Clerical grade.

I find that this is a ‘reasonable accommodation’ process, not a regular work transfer.

I find that in such cases employees retain their substantive role.

In this case the Worker has retained his, as long as he remains in the service.

I note that the Employer has confirmed that if he leaves this employment he will not be replaced. Also, if he was deemed fully fit again by Occupational Health he would return to his substantive post.

I note that he has sought to realign to a Grade 3 on the Administrative / Clerical grade.

I note that the top point Point 13 of the Administrative /Clerical grade is €35,270 and the top point Point 9 of his substantive role is €35,870.

I note that if he were granted his request he would not get an increase until 2019 at least.

I find that his manager’s request was no more than a recommendation. He is not the decision maker, that is the VRC and they have rejected this request.

I find that this has arisen from the Employer’s efforts to accommodate its employee.

I find that if this request was granted it would impact on the Employer’s ability to apply such accommodation in the future.

I find that he has been accommodated in his current post under the reasonable accommodation process.

I find that the Worker has not convinced me to change this arrangement,

For the above stated reasons, I recommend that this claim should fail.

Job Re-evaluation following reasonable accommodation.