ADJ-00009688

Complainant

Respondent

Anonymised Parties

An Associate Consultant

A Financial Software and IT Management House.

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-00012683-001

20/07/2017

The Complainant was subject to a TUPE transfer in November 2015. The dispute concerns the correct grading of the Complainant in the organisational structure of the Receiving Organisation.

On the TUPE transfer in November 2015 the Complainant was “mapped” at Grade Band B2. She accepted the TUPE in the belief that her issues would be resolved satisfactorily post the Transfer.

However, on establishing herself in the new organisation it was clear that she had been incorrectly mapped and should be at the higher B3 banding. Details of work duties and reporting levels were supplied in support of this case.

The banding decision has been the subject of extensive internal negotiations and two Appeal Hearings – an Initial Hearing and a subsequent Appeal of the initial Hearing.

In the final Appeal Hearing details are referenced to the internal Progression Cycle which it is suggested is the way forward. The Progression Cycle can allow for individual re mappings and in this case a move from B2 to B3.

The Respondent has failed to action this and the issue has remained unresolved.

2:1     Body of Workers claim.

As stated above the claim is a test case for a Body of Workers and as such under Section 13(2) of the 1969 IR Act an Adjudication officer has no jurisdiction.

2:2     Irrespective of the above point the Complainant was subject to a very vigorous investigation and mapping process prior to the TUPE transfer. The Banding at B2 was clearly agreed by the Complainant at the time of the transfer.

The Complainant has had a Grievance Hearing and an Appeal against the Outcome of the Grievance Hearing. Neither have found in the Complainant’s favour.

The final Appeal finding (dated the 6th of June 2017) indicated a way forward via the Progression cycle and this should be adopted by the Complainant.

3:1     This case was dealt with under the Industrial Relations Act 1969. An initial Hearing on the 17th October 2017 was adjourned by the Adjudication Officer on the understanding that further local discussions were warranted and an Adjudication decision might not be required. Unfortunately, the local initiatives came to naught and the case was resumed at Adjudication on the 26th February 2017.

The suggestion that the avenue of the Conciliation Services (following a procedural withdrawal of the Adjudication case) and if needs be ultimate referral to the Labour Court following Conciliation did not appear to gain sufficient mutual support among the parties.

3:2     The purpose of the Industrial Relations Acts from the 1946 Act onwards is the efficient resolution of disputes. A flexible approach has always been the hallmark of Industrial Relations Recommendations both by former Rights Commissioners and latterly Adjudication officers.

The solution to this case lies clearly in the Appeal hearing decision letter from the HR Programme Manager dated the 6th June 2017.

I quote relevant extracts

“The main points at issue have been re-examined ----- and given the representations made and the arguments put forward, we have concluded that the employees should work with their manager to have both positions put forward for the forthcoming progression cycle.   ----------------

The Progression Cycle is the accepted process used by the Company to ascertain if the roles are indeed adding additional value to the current group to warrant a change. We cannot see an alternative way of resolving this issue open to the Company given its whole remuneration system is dependent upon this methodology----------------“

The Author of the letter of the Appeal Hearing decision did not give direct evidence but the letter /Appeal decision came across to me as a carefully crafted piece of Industrial relations correspondence written by a seasoned IR professional.

In the oral hearing evidence was given by Respondent Managers that this Progression Cycle is indeed the system but the number of up-gradings (in this case from C2 to C3) is not entirely independent but can be subject to limits set at higher levels and internationally across the Group. In other words, a case might be meritorious but because sufficient numbers of regardings were not sanctioned at higher or overall Budget levels the case might have to be denied.

Accordingly, I am recommending as follows

1.      The Complainant utilise the Progression Cycle at a very early date. The Respondent to expedite this.

2.      The issue of the re-grading from C2 to C3 to be decided strictly on its own merits irrespective of any externally decided “limits or ceiling / budget restrictions” on Grade movements.

3.      If an eternal limit or “numerical celling” on re-grading is an issue this should be discussed with the Complainant and her Union post and independently of the outcome of the Progression cycle re-grading decision.

4.      If this becomes the stumbling block, then the issue can be referred back for a separate Adjudication decision on this specific “Ceilings /Budget Numbers” point

3:3     The Body of Workers Argument.

While it is true that some 85 employees were involved in the TUPE and interfering with the overall TUPE mapping process would indeed be a “Body of Workers” issue, Section 13(2) was never intended to cover situations where an individual worker or indeed in this case two workers seek to query a regarding decision particularly where there is a well-established mechanism in place to cover such individual grading issues – in this case the Progression cycle mechanism.

The Body of Workers Argument has to be seen in a realistic context in keeping with the industrial Relations spirit of the 1969 Act. The safeguards it was intended to provide are well in place in this case via the Progression Cycle process.

Accordingly, I did not accept the Respondent argument that I had no jurisdiction in this case.