ADJ-00014698

Complainant

Respondent

Anonymised Parties

Cleaning Operative

A Cleaning Company

Representatives

Colleen Minihane SIPTU

John Barry Management Support Services (Ireland) Ltd

Act

Dispute Reference No.

Date of Receipt

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

CA-00019234-001

17/05/2018

This case is centered on a claim for pay parity which has been denied by the Employer.

The Claimant commenced work as a Cleaning Operative on 27 May,1998. She is based on a Pharmaceutical site and works as a laboratory ware/cleaning operative on an hourly rate of €11.29 per hour /35-hour week. The Claimants last pay increase was in 2002 where she received an additional 20 cents per hour. The Union presented a contract of employment dated May 1998.The reference to Remuneration covered a mechanism on receiving pay to a bank account.

The Claimant has outlined her claim as seeking a comparable hourly rate of pay with fellow lab/cleaning operatives who earn €14.07. The Union submitted that she had been denied a full activation of the grievance procedure.

The Union outlined that the claimant had first sought to address her pay being out of line with her colleagues whose work was interchangeable with hers in 2004. She was unsuccessful and did not appeal. The Respondent outlined that the location where the higher rates of pay prevailed were linked with a new work area not then under their remit.

The Claimant lodged a grievance on the pay disparity again in January 2018, citing that they were doing like work with less service. On 23 February,2018, the grievance was not upheld. The reasons attributed to the refusal were:

·         No additional duties requested to vary the job specification.

·         JLC rates were exceeded in the claimant’s case and the respondent had no scope outside this forum.

The Claimant exercised an appeal on 20 March 2018 but there was no further engagement and the claim was referred to the WRC on 17 May ,2018.

The Union contended that the claimant, as the longest serving employee on site for the cleaning company, undertakes comparable work with her colleagues in the named location of X who earn €14.07 per hour and sought payment to the date of claim.

The Claimant recalled that when location X was established, she was offered relief work but was not informed of the higher pay levels paid there. She outlined that she was interchangeable in skills and safety training terms but no inter location mobility took place.

The Employer Representative disputed the claim on the basis that the role carried out by the claimant was not comparable to the work undertaken in Location X. The Employer outlined that differing rates of pay existed for historic reasons and the claim should be rejected.

The Employer provides a strategic outsourcing to clients across UK and Ireland. The Claimant initially worked as a part time cleaner for her first three years in employment, following which she accepted a full-time position as a Laboratory Assistant in Location Y. The claimant’s main duties are to ensure the Lab Ware is clean and dry, stocking shelves, retrieval of Lab ware from the chemical stores.

The Employer had previously contracted services to the main site. In or around 2000 Location X was established and the Employer succeeded in securing the contract through tender. The Employer operated separate and distinct contracts for Location X and Y with the client.

The Employer Representative submitted that the client had requested that staff originally on the main site, inclusive of location X were paid at a higher rate than other cleaners within the company and the industry. This request prevailed on the opening of location Y. This was done as the client wanted to ensure that their new state of the art facility received the appropriate level of ownership and standards from the Employers assigned team.

Subsequently, the client decided to alter the outsourced cleaning arrangement, The Employer secured the tender for the entire site. This resulted in two separate pay rates, one for staff working anywhere on the site and a second higher rate at Location X. Both rates exceeded the Industrial norm. This changed over time and the site premium dissolved. New employees were then placed on the JLC rates, the Industry standard rates. Three different rates of pay now prevail on site.

1.Location X € 14.07 per hour

2. Location Y and other long servers €11.29

3. Recent Employees (JLC rates ) € 10.40

As a long server, the claimant is permitted to retain her hourly rate, but her work is not comparable to Location X. The Employer submitted that the claimant had not brought her case under the Equality acts or Minimum wage Legislation .

The Employer contended that historical pay differential in the cleaning Industry was not unusual. The Employer argued that the move to three different pay rates was analogous to a TUPE situation. The rate of €14.07 is not attainable by new employees. It remains fixed to Location X. the Employer predicted that the claimant would attain and come in line with the JLC rates in or around 2020.

The Employer confirmed that there no anticipated vacancies at location X but if they did arise, they would be filled by the third ranking waged employee.

I have listened carefully to both parties. I have read both their written submissions. There are two aspects to the claim.

1 Issue of alleged procedural containment surrounding the grievance procedure.

2 Issue of the pay claim.

1. Issue of Alleged Procedural Containment.

Both parties accept that the Employer operates a grievance procedure. Both parties accept that the claimant activated a grievance in January 2018 and it stalled at Stage 2. The National Appeals Manager did not accept the invitation to undertake the appeal. There does not appear to have been any engagement at all at this stage. Given the Claimants length of service, I find this action to be disrespectful and one which does not place the company in a good light. The Statutory code on Grievance Procedures SI 146/2000 outlines

“Good practice entails a number of stages in grievance handling. These include raising the issue with the immediate manager in the first instance, if not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to third party, either internal or external, in accordance with local agreements “

I find that the claimant played her part in this process but this was not reciprocated by the Employer.I appreciate that the Employer may have felt that a concession of the claim was a remote possibility , however optimal Industrial relations manners must prohibit ignoring a long serving employee with an unblemished record and a precipitous referral to a third party . I find that this level of procedural containment is unacceptable in a modern workplace. I find merit in this aspect of the claim .

2 . Pay Claim

This issue is more complex.There is no reference to pay determination on the claimants contract   of employment outside a reference to a co -existing sick leave scheme .

I found a distinct lack of transparency surrounding pay determination at the outsourced site . The Claimant stated that she would have transferred locations around 2000 had she been informed of the enhanced rates .The Employer states that they are bound by the status quo of three pay rates. However, I am struck by the undisputed fact that the claimant is the longest server on the cleaning team and has acquired a myriad of skills during this time .

The Union submitted that the claimant is the only person left on her rate as 2 janitors had changed from shift and the prospect of a knock on claim does not arise .

The employer made a vigorous presentation that a recommendation to alter the claimants pay would result in the “ floodgates opening “ as there are a multitude of similar legacy arrangements particular to the cleaning Industry .I asked the Employer if they wished to rely on any Labour Court Recommendation in this area in support of the Residual agreements referred to ? Up to the date of completion of this Recommendation, I had not received details of precedent from either party .

In this case , I am struck by the lack of a visible pay determination mechanism for the claimant . The newly hired employees have the benefit of JLC rates with a small   annual increase in salary to look forward to , while the claimant has remained static since 2002 . I find an inequity there which is lacking in fairness and reasonableness and may even serve as a demotivator in the short to medium term .

I also find that the claimant has been unduly hesitant in her approach to this claim as she did not appeal the refusal to review her pay in 2014 .

I spent some time exploring the potential for cross site mobility between locations X and Y , given the clear interchangeability in the employees there and the claimant .This was rejected by the Employer .

I also spent some time exploring the potential for a job evaluation exercise to objectively analyse the claimants work . The Employer   deemed this impossible.

I find that the claimant has been unfairly left behind on the introduction of the JLC rates .I could not establish that any umbrella Agreement existed so as to cover the claimant and she remains in a salary limbo very distant from the terms operable in location X .I find this to be both unfair and unreasonable .

I find there is some merit in this claim .

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the Employer consults with the claimants Union to agree an updated contract of employment to take account of current employment legislation .

I recommend that the Employer pays the claimant €1,500 as compensation for the procedural containment which caused the hiatus in the company grievance procedure .

I recommend that the Employer considers the unique circumstances of the claimants case and applies the following equitable annualised pay measures to the claimant on a red circled basis .

January 2018   Hourly Rate of €12.29 per hour

January 2019   Hourly rate of   € 13.29 per hour .

January 2020   Hourly rate of     € 14.07 per hour .

I recommend that the claimant should be aligned to the pay rates of Location X from that point forward . In the event that Location X receives a pay adjustment/ upward alignment in the intervening period, the Employer should consult with the Union and apply the commensurate increase to the claimant .

Pay Determination