Complainant

Respondent

Anonymised Parties

A Worker

Health Service Provider

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-00015789-001

14/11/2017

The claimant commenced employment in 2001 with the respondent as a Grade VII in IA and his manager was the then Internal Auditor Mr. JB. The Auditor retired in 2010 prior to which he undertook a comprehensive handover of his duties to the claimant – documentary confirmation of this was submitted in evidence. It was submitted that from the 1st.April 2010 the claimant has been acting as Internal Auditor for his geographical area – initially reporting to Mr. MF the national director and 11 months later to Mr. DL, General Manager for an entire region of the country. A circular on regularisation of acting positions issued in 2013 – the claimant asked his line manager Mr. DL to include him for regularisation but he indicated that Mr. MF was dealing with the matter nationally - it was submitted that the matter of dealing with the case nationally was contrary to the guidelines issued which required line managers to submit business cases for applications for regularisation under the circular. It was submitted that from this point Mr. MF had control over regularisation of all IA staff contrary to the respondent’s guidelines.

It was submitted that the circular originated on foot of an acceptance that many employees had acted up without allowances or formal acting arrangements and it was designed to compensate staff who had taken on the role of higher grades who had exited under the incentivised schemes to reduce numbers in this employment .The motivation was to compensate those employees who accepted a lower pay grade during a time of national financial austerity in anticipation of a generous settlement/upgrade when better times returned .

It was submitted that the claimant had been a union activist in the negotiations concerning the future structure of internal audit between 2010-2012 and that there had been many robust exchanges between union and management (including Mr. MF) at the time – part of the agreement to emerge was the creation of promotional posts – the claimant competed for same in 2012 but was unsuccessful.

The claimant’s application for regularisation was rejected by Mr. MF on the basis that a nationally agreed restructuring process had taken place in 2012 and on the basis, that the claimant did not meet the criteria for regularisation. Convinced that he met the criteria, the claimant pursued the matter to the WRC culminating in a joint referral to the Labour Court – the Court recommended that the claimant utilize the Appeals Process to resolve his complaint. It was submitted that the Labour Court did not form the view that the claimant was excluded from the regularisation process due to the prior restructuring agreement on internal audit. The recommendation of the Court was submitted into evidence

The claimant attended an appeals meeting ( 30thMarch 2016) with the Appeals Officer Mr. JD and his line manager Mr. DL who supported his application to be regularised as a Grade VIII. It was submitted that toward the end of the meeting Mr. JD mentioned that he would have a word with Mr. MF as they were working out of the same building. The claimant was immediately concerned and sought that Mr. JD revert to him with a right of reply but this did not happen. Mr. JD issued his recommendation on the 12th.April 2016 – stating that the claimant did not meet the criteria- without giving any reason for said conclusion. The claimant was directed by Mr. JD towards the Job Evaluation Scheme which does not encompass the claimant’s grade. When the claimant sought clarification on the rejection of the appeal by Mr. JD he was advised that his acting arrangement had not been “specifically and clearly requested by a sufficiently Senior Manager in the IA unit”. It was contended that this was factually incorrect and when Mr. JD was challenged it was submitted that he offered no rational for this finding.

It was advanced that the acting arrangement had been approved and operated by the national director of IA and by the claimant’s regional manager Mr. DL. The claimant at this point was aware that his colleagues in similar situations had been regularised without recourse to appeal and he was feeling very much victimised.

The claimant approached the national HR director who offered the appointment of an external party Mr. M to review the claimant’s case on the basis of terms of reference drawn up by the HR director and subsequently agreed with the claimant.

The claimant met with Mr. M on the 4th.April 2017 – Mr. M undertook to have his report submitted to the HR Director by the 16th.April 2017.

The claimant was emailed by the HR director’s office (Ms.AD) on the 10th.May 2017 confirming that Mr. M had reverted with a positive recommendation in favour of the claimant. The HR director’s general manager (Ms.AD) congratulated the claimant on the 11th.May 2017, confirmed he had been regularised, confirmed she had been given the authority to implement the recommendation and that all the terms of the 2013 circular would apply to him – ie. regularised with effect from the 1st.October 2013. Later that day Ms.AD emailed the claimant to say that she “had made a terrible error as I was thinking of another similar case that Mr .M had heard for us …I can confirm that Mr.KM is still considering and has yet to revert”. The claimant wrote to Mr. M and the HR director for clarification – Mr. M replied directly to him on the 26thJune 2017 stating “I submitted my report on the Adjudication Process as per the terms of the agreement for undertaking the appeal requested by you. My involvement in the process has therefore ceased. Matters relating to your appeal are between you and the respondent”. On the 24th.July, the claimant spoke with the HR director – she confirmed that MR.M had found in his favour but indicated that she “needed to hold off until the 15th.Sept.. at which point ‘everything would be sorted”. She agreed to forward a copy of Mr. M’s report to him.

On the 25th.July 2017, the HR director emailed the claimant to say that Mr. M had completed “an initial review” of your case and he would be making “a final determination “to her on the 15th.Sept.2017 when she would revert to the claimant without delay. It was highlighted that there was no reference to initial review or final determination in the terms of reference that had been agreed. A chronology of further emails between the parties was presented. On the 26th.Sept. the HR director advised the claimant that Mr. M was to meet with Mr. MF and herself before the decision was finalised. It was contended that this meeting was irregular, lacked formality and included the participation of Mr. MF who was “openly hostile to the claimant’s attempts to get regularisation”.

Further emails were exchanged – on the 31st.Oct. 2017 the HR director emailed the claimant enclosing Mr. M’s report.

2 reports from Mr. M were submitted into evidence – April 2017 report obtained under FOI and a report dated the 31st.Oct 2017.

It was submitted that there was little credible in the manner in which the respondent had dealt with the claimant’s case – the claimant was convinced Mr. MF was hostile to his claim and prepared to go to any lengths to prevent his regularisation – it was contended that he should have recused himself from the process. It was advanced that the exclusion of the claimant’s line manager from the process was inexplicable.

The finding in Mr. M’s report of April 2017 is as set out hereunder:

“…………No adverse comment or statement has been made of the claimant’s competency or his performance.

I therefore find that insufficient weight was attached by the Appeals Officer to the “sufficiently Senior Manager “category and their respective current and historical views on the claimant’s performance and the overall length of his Acting Grade 8 service.

On balance, therefore I find for the claimant on the basis of the above criteria.”

The finding in Mr. KM’s report of the 31st.10.17 is set out hereunder:

“…………No adverse comment or statement has been made of the claimant’s competency or his performance.

I therefore find that insufficient weight was attached by the Appeals Officer to the “sufficiently Senior Manager “category and their respective current and historical views on the claimant’s performance and the overall length of his Acting Grade 8 service.

On balance, therefore the claimant has put forward a compelling case.

Management, however state that there is a collective agreement in place with IMPACT regarding the filling of promotions in this grade and that the claimant has availed of this process with a negative outcome and this followed both a Labour Court Recommendation and a further promotion competition.

This places me in a dilemma that I believe can be resolved only by the claimant being afforded the opportunity at the earliest possible instance of being granted a fast track interview for promotion to a Grade VIII post and the terms of my decision on his appeal and the spirit of my investigation conclusions be taken on board in any future interview process”.

It was submitted that the reliance on the restructuring agreement with IMPACT to exclude the claimant from regularisation was not to be addressed by Mr. M and never featured in the terms of reference drawn up by the national HR Director. The claimant was directed to the Appeals process by the Labour Court and to Mr. M by the HR director. It was argued that the regularisation process does not exclude any group or dept. and 2 of the claimant’s colleagues in internal audit were successfully regularised and were not excluded because of the restructuring agreement.

It was submitted that the HR director had commissioned Mr. M to review the claimant’s case. It was submitted that the Terms of Reference and timelines were ignored.

No satisfactory explanation was given for the setting aside of the positive recommendation of April 2017 from Mr. M which was communicated to the claimant on the 10th.May 2017.

It was submitted that the WRC Code of Practise defines victimisation as any adverse or unfavourable treatment that cannot be justified on objective grounds. It was submitted that there was ample evidence to show that the claimant was victimised by the inaction of the respondent and the inordinate lengths Mr. MF went to prevent the claimant’s regularisation.

It was submitted that the claimant finds it difficult to maintain confidence and trust in the respondent’s HR dept. He requested that Mr. M’s April report – as the only credible and untainted document – be accepted and implemented immediately.

It was submitted that the personal toll the case had taken on the claimant and his family was immense and the anxiety and stress he had needlessly endured was unacceptable for any employee. Maximum compensation was sought as was a direction to the respondent to adhere to fair procedures and treat their staff with respect, dignity and honour undertakings given.

The respondent raised the matter of jurisdiction and contended that the matter in dispute had already been adjudicated upon by the Labour Court in recommendation LCR 21065.

Without prejudice to the foregoing, it was submitted that the claimant was not doing the work of a Grade VIII and that the parties had agreed to the outcome of the appeal’s officer being binding.

The respondent went on to rely on a submission from the respondent’s legal adviser in response to a request from the claimant’s solicitor that an impending competition for Grade VIII posts be put on hold until the claimant had exhausted the processing of his grievance .In this document it was argued that the claimant did not meet the criteria for regularisation ,that the substantive position was not vacant and that the claimant had not acted in the position of internal auditor   and no demands had been made on him to do so. It was contended that “the acting arrangement, which your client contends was in place (and which our client denies was ever In place ) was certainly not “ appropriately approved “ by the national director.   It was submitted that the Appeals Officer “did not consider your client was acting up “. He had met with Mr. MF who did not consider the client was acting up, had not approved any such arrangement and did not expect the claimant to act up. It was submitted that it had been agreed by the staff panel that the Appeals Officer’s decision would be final. It was submitted that the kernel of the claimant’s issue with the appeal was that the Appeals Officer engaged with Mr. MF – it was submitted that this was entirely appropriate given Mr. MF’s role and his role in approving any such arrangement. It was further advanced that it was entirely appropriate for “Mr. MF to intervene and be heard by Mr. M”.

It was submitted that part of IMPACT’s negotiating strategy on the restructuring discussions was to preclude its members from taking on any higher duties until full agreement had been reached with the HSE and the national director. It was contended that the respondent in response made it clear that it had no expectation that the claimant would fulfil higher duties. It was submitted that while Mr. M may have initially “saw merit in your client’s position based on your client’s version of events, the Head of Internal Audit was unaware of this review until Mr. M was at the point of issuing his report”. Mr. M changed his report when he heard the respondent’s version of events.

I have reviewed the evidence presented at the hearing and noted the submissions of the parties. At the outset, the respondent contended that the WRC did not have jurisdiction to investigate this complaint as it had already been heard by the Labour Court. I have considered this submission and am satisfied that I have jurisdiction to investigate this dispute; the kernel of the claimant’s current dispute is the events that transpired post implementation of the Labour Court recommendation i.e the review by Mr. M as opposed to the initial matter considered and upheld by the Labour Court of a means to process the claimant’s regularisation claim.   Additionally, the respondent had an opportunity to object to these proceedings when notified of the referral but did not do so.

While I acknowledge the arguments advanced by the respondent in relation to the binding appeals process and the contention that the claimant was not doing the work of a Grade VIII , I am obliged to conclude that these matters were superseded by the decision of the HR director to refer the case to an external party – namely Mr. M and by the terms of reference drawn up by her which specified “ Particular focus should be given to the fact that the claimant has carried out the role of Grade 8 Internal Audit since April 2010 with cognisance of the vacant nature of the post in question (i.e. vacancy of post)”.

Clearly the HR director accepted that there was merit in the claimant’s case and facilitated a review by Mr. M. In the event, he issued his April 2017 report and upheld the complaint – this report was obtained through FOI. Mr. M’s finding was communicated to the claimant verbally and in writing and the day after the respondent’s position altered to – “an error was made about Mr. M’s report and it had been confused with another review”. Thereafter, as acknowledged by the respondent in their submission, the national IA director intervened and ultimately a different report was issued – clearly Mr. M was seeking to resolve the matter taking into account the concerns of the IA director. However, as the claimant has rightly pointed out there was no provision in the terms of reference for such an intervention and given the claimant’s conviction that the IA director was hostile from the outset, it is unlikely that he would have agreed to any such provision when the terms of reference were presented to him for agreement. All of the circumstances, I find that the claimant has presented very compelling arguments to support his contention of unfair treatment. Mr. M ‘s October report is unacceptable to the claimant and in my view, is unimplementable and unenforceable in the context of public sector interviews.

I recommend in full and final settlement of this dispute that the respondent implement Mr. M’s April 2017 finding and regularise the claimant as a Grade 8 with effect from the 1st.Jan. 2013.I further acknowledge the distress that has arisen for the claimant through this protracted acrimonious dispute and recommend that he be paid €10,000 compensation for same.