Complainant

Respondent

Anonymised Parties

An IT Director

A Public Agency

Representatives

Roger McGreal B.L.

Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00013822-001

08/09/2017

The complainant is an IT director in a large public agency.

A dispute has arisen about his grading.

The complainant says that he is the only person to be left on a grade which is no longer in use in the organisation and which puts him at a salary disadvantage with his peers.

The differential is some €9.500.

If his position were given its correct title this would resolve the problem by bringing him within the correct grade.

He first raised this anomaly in 2017.

The problem has its origins in a rationalisation of services that was originally implemented in 2005.

The rationalisation brought previous separate services together under an agreement as to what their future grade would be.

This involved the creation of a new structure for ICT grades in the new, or re-organised entity.

However, the complainant says he was not assimilated as provided for in the agreement, although all others in a comparable position to him were so assimilated, and that his exclusion from the process was an error.

He seeks re-grading now to the higher grade.

The respondent says that the complainant is not the only person in his current grade and rejects the complainant’s contention that it is ‘obsolete’.

The background to the case is in an agreement made in 2004 in respect of the rationalisation and amalgamation of a number of different service units into a re-organised entity, although its implementation was delayed for some time.

However, the key point is that the post holders who were due to be assimilated into that new structure were required to hold ‘permanent’ appointments in their then existing posts.

The complainant did not meet this eligibility requirement; he was in an ‘acting up’ position and was therefore not eligible to transfer to the new structure on the basis he asserts.

To be eligible for transfer a candidate would have to have been an existing Director of ICT which the complainant was not. Indeed, his acting up position was itself a grade below that of Director and therefore he was not in the cohort due to be assimilated.

Therefore, he is not entitled to claim the rights he is seeking under the terms of the relevant agreement, which was a national agreement between the trade union and the respondent.

His promotion to the grade which may have brought him within the ambit the 2004 agreement was not until 2008. The agreement was specific to the earlier rationalisation episode and did not apply to future promotions.

This is a complaint under the Industrial Relations Act and indeed it turns on the interpretation of an industrial relations agreement.

The respondent argued that a national agreement could only be controverted by the actual parties to it, the trade union and the employer, and that, as the agreement is not an agreement between individual employees and the respondent it is not open to an individual employee to seek to rely on its terms.

It would be unusual if an employee could not refer a complaint for the implementation of a national agreement as any collective agreement is made for the benefit of the members of the union which negotiates it (which, incidentally the current complainant is not) and there is no requirement in the agreement that I could see that a claim for the application of its terms requires the participation of the union as a party.

That is a side issue as the central question is whether the complainant is in fact covered by the provisions of the agreement, whether he is a member of the union or not.

I find on the facts before me that he is not covered by the agreement.

The complainant was only acting up in the position which he claims should have led to his assimilation between 2005 and 2008.

The respondent says he was not covered by the agreement on two grounds; because it was not the grade from which assimilation was specified to take place, and he was not finally promoted into such a grade until 2008, by which time the 2004 agreement had ceased to have any application.

The complainant says that this resulted from an earlier error in 2005 in how his post was graded.

Perhaps, but it is not possible to seek the remedies provided for under this legislation in 2017 for an alleged error that took place twelve years earlier.

Even undoing an actual breach of an agreement given the passage of time involved here would be problematic.

In the event, I find that the complainant is not covered by the terms of the agreement under which he has referred his complaint and it fails.

For the reasons set out above I do not uphold complaint CA-00013822 and it is dismissed.