ADJ-00014643

Complainant

Respondent

Anonymised Parties

An Employee

A State Agency

Representatives

Mike Mc Namara Fórsa Trade Union

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-00019173-001

14/05/2018

The Complainant worked for a state agency (SA) where her work was split 60/40 between two distinct branches of the SA. The Complainant was employed as a Clerical Officer (Grade 3).

In 2014, the work, in the branch of the SA on which the Complainant was engaged for 60% of her time, was transferred to a new state agency. This agency was set up as a separate legal entity and is now the Respondent in this complaint.

However, despite the larger portion of her work being transferred out to the Respondent, the Complainant remained an employee of the SA, while continuing to do the work for the Respondent. The SA was reimbursed for the Complainant's time working for the Respondent by issuing invoices to the Respondent.

The Complainant eventually became an employee of the Respondent on 26 June 2017.

The Complainant is seeking an upgrade to Clerical Officer (Grade 4) and to have this upgrading backdated to November 2015.

In support of her claim, the Complainant stated in evidence that, in 2015, the Respondent conducted a review of their clerical/administrative structures. However, the Complainant stated that she was excluded from this review as, technically, she was still employed by the SA.

It was further stated that, separately, the SA conducted a process of "regularisation" on foot of the Haddington Road agreement. However, the Complainant was not eligible to apply for an upgrade under this process as she worked most of her time for the Respondent.

The Complaint stated that in November 2015 she submitted a letter of appeal to the Respondent in relation to the situation. However, it was stated that she did not receive a response to this correspondence. 

It was further stated that her direct line Manager in the Respondent signed off on a Business Case, which recommended that she should be upgraded to Clerical Officer (Grade 4) and that this should be backdated to January 2014 when the Respondent formally came into existence. However, the Complainant stated that the upgrade was never sanctioned.

In response to the Complainant's claim, the Respondent stated that she became a member of their staff with effect from 26 June 2017. The Respondent stated that their liability as the Complainant's employer commenced on that date.

According to the Respondent, they met with the Complainant and her Trade Union representative in April 2018. It was stated that, following this meeting, the Respondent offered to reopen the 2015 review process and carry out a job evaluation of her role. It was stated that if the evaluation found the duties and responsibilities were those of an Assistant Staff Officer (Grade 4), the Complainant would be awarded the grade and it will be backdated to 26 June 2017, the date she commenced employment with the Respondent.

The Respondent accepts that the Complainant is in a unique and unusual position but that it was a matter for the SA to resolve in the first instance as her employer. It was stated that any dispute that the Complainant may have prior to 26 June 2017 is with the SA who were her employer at the time and not with the Respondent.

In conclusion, the Respondent stated that they have offered to reopen the 2015 evaluation process on a once off basis due to the unique and unusual circumstances which surround this case. The Respondent confirmed that they will implement its findings with effect from 26 June 2017. However, the Respondent states that they cannot backdate the outcome prior to the Complainant becoming their employee as that claim and liability rests with the SA.

Having carefully considered all of the submissions and, in particular, the oral evidence presented at the Hearing, I can fully understand the Complainant's frustration and dissatisfaction with the circumstances which have evolved in relation to her current grading situation.

The selection of the Complainant to remain as an employee of the SA, when the majority of her work was being taken over by the Respondent and the complicated arrangements put in place whereby the SA recovered the Complainant's costs by means of a commercial transaction can only be viewed as cumbersome and questionable in terms of their appropriateness. 

It is also clear that while the Complainant was an innocent party in terms of the above arrangements, her view that she has been disadvantaged by those arrangements, when compared to some of her colleagues, carries some validity.

However, notwithstanding the above, I am satisfied that the Respondent has no liability with regard to the Complainant’s situation prior to her becoming their employee on 26 June 2017. I am further satisfied that any resolution of this dispute must recognise the Respondent's position in this regard.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I make the following recommendation with a view to resolving the Complainant's dispute in a manner which is consistent with the Respondent's liability to her as their employee:

Consequently, I recommend that:

1)      The Respondent reopens the 2015 evaluation process on a once off, exceptional basis, to recognise the unusual and unique circumstances of the Complainant's situation. This process should take place with immediate effect and be finalised without any further delay.

2)      In the event that the outcome of the evaluation process results in a regrading of the Complainant to Assistant Staff Officer (Grade 4) then the following should apply:

                                 i.            the higher grade will be recognised with effect from 1 January 2014 for incremental purposes only.

                               ii.            incremental credit will be awarded with effect from 26 June 2017 (i.e. the date of the Complainant's employment with the Respondent) in line with point 2 (i) above and salary arrears will be paid effective from 26 June 2017.

Industrial Relations Act

Regrading