Complainant

Respondent

Anonymised Parties

An Employee

A Hospital Group

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-00016191-001

07/12/2017

The Complainant worked as Head Porter at one of the Respondent’s Hospitals until his retirement on 1 December 2017. From 1 June 2002 until his retirement, the Complainant was the acting Portering/Security Services Manager in the hospital. The Complainant is in dispute with his employer concerning his grading and remuneration.

Background:

The Complainant’s Trade Union representative submitted, on his behalf, that he was paid on the salary scale applicable to a Porter Supervisor and received an allowance equal to the difference between that salary and the first point of the salary scale applicable to a Grade V Clerical officer (Staff Officer). This allowance was not pensionable and the Complainant did not progress incrementally along the Grade 5 scale.

It was submitted that, by letter dated 21 July 2011 the Complainant sought a meeting with management to discuss regularisation of his position. It is submitted that he received a reply on 5 September 2011 to the effect that the in applicable collective agreement concerning regularisation applied to clerical staff only.

According to his representative, the Complainant raised the matter again, Rule by way of letter dated 25 July 2016. It is stated that he received a reply of 10 August 2016 from the Hospital’s HR and Medical Manpower Manager. This correspondence requested the Complainant to identify what exactly he wanted investigated. However, it was stated that the correspondence made no reference to the question of regularisation.

It is further submitted that, by way of letter dated 15 November 2017, the Complainant’s Trade Union wrote on his behalf to the HR Manager seeking to have the matter heard in the grievance procedure. The Complainant’s Trade Union representative pointed out that the Grievance Procedure states, inter alia, that:

·         Every effort will be made to address complaints quickly and fairly……

·         This procedure provides a comprehensive method for the resolution of grievances in the absence of conflict…… and that

·         A meeting will be arranged to discuss the matter no later than seven working days following receipt of the complaint.

However, it was pointed out, on behalf of the Complainant, that, notwithstanding the above provisions of the Grievance Procedure, no response was received from HR and no meeting was held under the Grievance Procedure. Consequently, the matter was therefore referred to the Workplace Relations Commission on 7 December 2017.

Main Arguments:

The Complainant’s Trade Union representative stated that it was regrettable that the Complainant’s grievance was not heard by the employer. It was further submitted that the Complainant’s situation should have been dealt with, at the latest, under the arrangement for regularisation of acting posts as set out in the HR Circular 17/2013, which had arisen as a consequence of the Haddington Road Agreement.

In support of the Complainant’s case, reference was made to the Labour Court case of St James’s Hospital & A Worker [LCR21599]. In their conclusions in this case, the Court stated that: “the intent of Circular 17/2013 was to bring the practice of long-term acting to a named as a feature of employment in the Health Service”.

The Complainants’ representative stated that they were unaware of any effort made by the employer to fill the substantive role of Portering/Security Services Manager during the Complainant’s 16 years of acting up into the post, even though it is clear that this was a new post in 2002 and intended to run for only six months.

Conclusion:

In summing up the Complainant’s case, his Trade Union representative stated that they were seeking a recommendation that the Complainant be regraded to Grade V (Clerical) with net retrospective effect from 15 October 2013.

According to his representative, the effect of such a recommendation would be that (a) the Complainant will receive back pay in respect of unpaid incremental credit from that date and (b) his pensionable salary at the last date of service would increase for the purposes of the calculation of his retirement lump sum and pension, which had yet to be paid.

Background:

The Respondent stated that the Complainant has been employed since 1989, at which point in time, it was an independent entity. The hospital has since been subsumed into a broader Health Services group.

It was further stated that the Complainant was appointed as Head Porter in June 2002 and remained in that post up to his retirement at the end of January 2018, having reached the age of 65.

The Respondent’s position:

According to the Respondent, the Complainant was appointed into the position of Head Porter in 2002 on the appropriate pay scales for the grade. It was further submitted that on top of that salary, various allowances were paid at different times. The Respondent submitted that it was clear that the pay grade substantive post remained the same and what was paid were allowances, albeit that one allowance was to make his salary equate to the first point of Grade V. The Respondent submitted evidence, by way of old agreements and memos in support of their position this regard.

The Respondent stated that, in a memo dated 25 July 2002, from the Respondent’s then Human Resources Manager specifically mentions that the issue of acting Grade V as not being applicable and the grading was clearly not conceded as part of discussions at that time. It was further stated that, at no stage, was the substantive grading of the Complainant’s position amended. According to the Respondent, the Complainant would not fulfil the full roles and duties associated with a staff officer grade post.

In response to the Complainant’s contention of having raised the matter of the regularisation of his position on two occasions, once in 2011 and was in 2016, the Respondent stated that with regard to the 2011 correspondence, the then Director of Nursing responded on 5 September 2011. It was pointed out in this correspondence that regularisation only applies to clerical grades. It was further stated that it was again pointed out to the Complainant that management had not changed the substantive grading of the post to that of Grade V.

The Respondent stated that there is no other record of the grievance being pursued until further communication was received in July 2016. According to Respondent this correspondence was replied to in August 2016. The Respondent stated that there was no further correspondence until the matter was raised by the Trade Union in November 2017.

With regard to the matter of the allowance being non-pensionable, the Respondent stated that it has been confirmed that superannuation has been paid on the allowance and is being treated as an emolument for the purpose of pension. Therefore, the Respondent’s position is that this will increase the value of the Complaints pension lump sum.

In conclusion, the Respondent stated that they are governed by public sector pay policy, as set out in circular 16/2013. Accordingly, the Respondent stated that there will be advertising for the Complainant’s replacement on the grade of Head Porter and not in Grade V, as opposed has not been regraded.

I have given careful consideration to the written and oral submissions presented by and on behalf of the Complainant and the Respondent.

From the documentary evidence adduced, it is clear that a change in the Complainant’s position/job title took place in June 2002. This involved a change from the Complainant’s previous position as Head Porter to that of Portering/Security Services Manager. The Personal Change Form, completed at the time by the Respondent, confirms that this was a new post, effective from 1 June 2002 and that the applicable salary was at the first point of Grade V.

The document also contains a comment, in the section pertaining to the Complainers new position, to the effect that it was a six month contract. However, notwithstanding this, the Complainant has held down the position of Portering/Security Services Manager from his appointment on 1 June 2002 until he retired from the Respondents employment on 1 December 2017.

In their oral evidence at the Hearing, the Respondent stated that the post was never regraded into a substantive Grade V post nor was it ever intended that the Complainant would be regraded into the new post. In a context where the Complainant has held down his position for over 15 years, I find it unreasonable and untenable that the Respondent continues to hold this position in relation to the regrading of the Complainant’s post. Therefore, I find that the Complainant’s expectation that his situation should have been regularised at an early stage is not unreasonable.

It is common case that the Complainant was in receipt of an allowance which bridged his previous Head Porter salary with that of Point 1 on Grade V. Clearly this arrangement had been in place long before the financial crisis resulted in the moratorium on recruitment and appointment.   Consequently, it is arguable that the Complainant’s position should have been regularised prior to the moratorium. However, the evidence shows that such was not the case.

In that context then, it is necessary to consider the application of HR Circular 17/2013 to the Complainant’s situation. In 2013, discussions took place, under the auspices of the Haddington Road talks, aimed at regularising the situation in relation to staff who were holding down positions in an “acting” capacity. The outcome of these discussions was encapsulated in the HR Circular 17/2013. This Circular provided for the regularisation of acting posts in conjunction with the introduction of new arrangements for short-term filling of posts. In this regard, the Circular clearly set down criteria governing the regularisation of acting posts.

Insofar as the Complainant’s case is concerned the relevant criteria, from HR Circular 17/2013 is set out at Point 3, which states: - “any post for which regularisation is proposed must have been acted in on a continuous basis for at least two years at 31 December 2012, and the acting arrangement must have continued since that date”. As the Complainant had been in receipt of his allowance for 10 years at the effective date set out at Point 3 of the Circular, a situation which continued on until his normal retirement, he was clearly in scope for regularisation. Therefore, I am strongly of the view that the Complainant’s situation should have been resolved in the context of HR Circular 17/2013, particularly when the Circular states at Point 4 that: “the process will encompass all grades”.

It is clear, in my view, that the intent of Circular 17/2013 was to put an end to the practice of long-term acting roles as a feature of employment within the Respondent’s organisation. In a Guidance Document prepared by the Respondent’s management with regard to the application of HR Circular 17/2013, I note the following position with regard to temporary appointments extending beyond 12 months in duration. The Guidance Document states that such contracts “should only be on an exceptional basis as they would run counter to the concept of temporary appointments”.

In a context where there is clear evidence that this was a new position into which the Complainant was appointed in 2002, where he held down that position for the following 15 years, where his request to have his situation dealt with under the Respondent’s Grievance Procedures and where there is evidence supported by various Labour Court/Adjudication Service decisions and recommendations, I find that the Complainant’s claim for regularisation of the post he held for fifteen years is well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above and taking all of the circumstances into consideration, I recommend that, having regard to the specific circumstances and the duration of the Complainant’s tenure in the post and in the absence of any exceptional basis for that appointment extending for such a long period, the Complainant should be regraded to Grade V(Clerical) and that this regrading be applied retrospectively 15 October 2013.

Industrial Relations Act

Regularisation of posts

Acting positions