ADJ-00011673

Complainant

Respondent

Anonymised Parties

A Family Therapist

A Healthcare Provider

Representatives

O'Mara Geraghty McCourt Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00015508-001

02/11/2017

The worker is employed as a Family Therapist by the employer since 1997. The dispute refers to several issues concerning the worker’s employment. Issues raised by the worker include Grade Codes and Salary Scales for the grade of Family Therapist, Contract of Employment and Job Description clarifying participation with other professions around clinical issues and service planning and issues relating to annual leave. The worker has also raised issues in relation to his rate of pay, previous agreements relating to retrospective payments of agreed rates as well as queries in relation to application dates of collective agreements reached between his employer and the Trade Union representing his profession. Other issues raised by the worker relate to matters that have been resolved or are in the process of being resolved since the referral of this dispute.

Central to the dispute are issues relating to the worker’s rate of pay and arrears which the worker claims he is owed.

For ease of reference the worker’s employment history and applicable rates of pay are as follows:

The worker commenced temporary employment in 1997 and was placed on Point 1 of a 12-point PayScale. Subsequently in 2000, the worker was permanently appointed and was placed on the 10th point of the PayScale which included 7 years incremental credit for relevant previous service. In March 2003, by way of two Long Service Increments (LSI’s) the worker was placed on the 12th point of the PayScale at €58,311.

Between 2003 and 2007 matters relating to the introduction of a specific grade of Family Therapists went through normal local level procedures between the employer and the Trade Union unsuccessfully and resulted in referrals to the Labour Relations Commission (LRC) and subsequent Labour Court Hearings. (Labour Court Recommendation No’s: LCR11738 and LCR 19016 refer).

Resulting from the processes as recommended by the Labour Court, a circular issued from the employer in May 2009 (HR Decision 014/2009) which increased the worker’s earnings from €58,311 to €68,255 and placing him at the first point of a six-point PayScale applicable to the Principle Social Worker grade (paid retrospectively to 10th September 2008). The worker, in 2014 was paid arrears in relation to an error whereby he did not progress on the Principal Social Worker Salary Scale since 2008.

The parties furnished extensive written submissions at the adjudication hearing. Further information was sought and was received in November 2018.

The worker stated that the application of HR Decision 014/2009 is central to his dispute. The worker stated that an interim agreement between his Trade Union and the employer in 2002 provided that the offer was

“without prejudice to arrangements that may be arrived at nationally for the profession and that it will be paid retrospectively.”

The worker states that on the basis of that agreement, he should have received application of the nationally agreed rates as provided in HR Decision 014/2009 retrospective to March 2000.

In relation to the commencement point on the salary scale provided for in HR Decision 014/2009, the worker believes he should have been placed on the 6th point of that scale on the basis that he had been on the 12th point of the Addiction Counsellor scale and should have progressed seamlessly from the maximum point of one scale to the maximum point of the new scale. In addition, the worker stated that he was on the maximum point of the Addiction Counsellor scale between 2003 and 2008 and the additional experience gained should have been reflected in his placement on the new scale outlined in HR Decision 14/2009.

The worker is also seeking that the appropriate contract of employment and job description be issued to him and that he receives the outstanding information he sought following the processes recommended in Labour Court Recommendation No: LCR19016.

In relation to the Agreement with the worker’s Trade Union in 2002, the employer stated that all issues relating to the workers employment since his commencement in 1997 were resolved when the worker accepted that he would be placed on the 10th point of the 12 -point Addiction Counsellor PayScale with effect from 9th March 2000. The employer stated that this included incremental credit for relevant previous service.

In relation to the application of the Principal Social Worker Salary Scale to the worker in line with HR Decision 014/2009, the employer stated that the circular provided that:

“the post holder may be designated in the post of Family Therapist, at the nearest point but not below on the salary scale attached to the post.”

The employer stated that the worker was placed on the appropriate point of the scale and that the nationally agreed rates and subsequent circular did not provide for retrospection. The employer also confirmed that, initially, the worker did not progress on the PayScale in the normal way but that this was an error and was rectified in 2014 and all arrears were paid.

Note: National Level discussions appear to have addressed the issue of Grade Codes and Consolidated Salary Scales for the complainant’s grade. Notification of this issued by the employer on Friday 28th September 2018. The Adjudication hearing of this dispute took place on Monday 1st October 2018. The issue of annual leave also appears to have been resolved and there are also local procedures temporarily in place relating to participation and service planning pending receipt of the appropriate contract of employment and job description.

The pay elements to this dispute are as follows:

The worker believes that the incremental credit he received by way of an interim agreement in 2002 (retrospective to March 2000) should have been reflected in his placement on the Principal Social Worker scale when it was applied by virtue of HR Decision 014/2009. The worker does not accept that he should have been placed on the first point of a six-point scale, having been on the 12th point of a 12-point scale prior to the implementation of the circular.

In addition, the worker is seeking that he be placed on the 6th point of the PayScale retrospective to March 2000, on the basis that the interim agreement reached in 2002 provided that the salary outlined

“is without prejudice to arrangements that may be arrived at nationally for the profession and that it will be paid retrospectively.”

On the pay issue raised by the worker I find as follows:

In relation to the commencement of the worker’s employment in 1997 until 2000, the worker progressed from Point 1 to Point 10 on a 12-point PayScale in a 3-year period. This covered 3 years of employment and incremental credit for 7 years of relevant service elsewhere. After two LSI’s the worker reached the maximum point of the PayScale in March 2003. In September 2008, following review and agreement, the worker was placed on the agreed PayScale at the appropriate point. The agreement at the time did not provide for retrospection.

In relation to the status of the “interim agreement” I find that this was a complete resolution of the issues at the time as it took into account all issues relating to the workers employment at the time and since his commencement. I do not find that this was an interim agreement as claimed.

In relation to the arrangement in 2002 being without prejudice to arrangements that may be arrived at nationally, I accept the employer’s position that discussions were underway nationally with respect to Family Therapists and that the resolution in respect of the workers employment between 1997 to 2003 was agreed without prejudice to those discussions.

In all of the circumstances of this dispute, I do find that there is merit in the worker’s claim. I find that the worker was aligned to the appropriate PayScale throughout his employment and pay related issues that did arise were resolved with appropriate arrears paid to him. The PayScale’s provided in HR Decision 014/2009 were collectively agreed nationally, applied to a group of workers and had specific implementation dates. The pay scales agreed as part of HR Decision 014/2009 did not provide for retrospection. In my view the worker cannot seek to act outside of collectively agreed rates of pay and implementation dates.

Outstanding issues

The worker also raised issues that arose as a result of Labour Court Recommendation No: LCR19016. The worker sought clarity on whether the evaluation of the independent expert, as recommended by the Court had been completed and if so what were the recommendations. The worker also sought clarity in relation to the Court’s recommendation concerning the establishment of a Partnership Working Group and issues concerning the representation of the Psychotherapy grades among its members.

On these issues, I note the commitment given by the employer in its letter of 14th September 2018 to respond to the worker when the requested information is received.

Having considered the submissions of the parties to this dispute, I do not recommend in favour of the worker with regard to pay rates and retrospection.

If it remains the case that the worker is not in receipt of an updated contract of employment and job description, I recommend that he be furnished with the required documents without delay.

Rates of Pay