Worker

Employer

Anonymised Parties

A Regional Manager

A State Agency

Representatives

Fórsa Trade Union

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-00026311-001

15/02/2019

The claim was referred to the WRC as a result of dispute in respect of the correct remuneration payable to the Worker.

Fórsa on behalf of the Worker submits as follows:

The Worker started her employment with the Employer in 1996. In 2011 the Worker, along with 16 other staff members was transferred to a new role of Area Manager. Further negotiations took place in respect of the pay rate for these managers and a blended acting allowance was agreed upon. The Worker received said payment. This confirms that she was remunerated for the role of Area Manager.

In April 2013 the Worker developed breast cancer and, on recovery sought, on medical advice, an alternative post nearer home due to the 90-minutes commute each way daily. The Worker was re-assigned by Expression of Interest as Regional Quality, Risk & Service Improvement Manager based in a different, more suitable location. This re-assignment was confirmed in writing by Regional HR Manager, PM by letter date 20th September 2013 that the Worker be “re-assigned on her existing terms & conditions of employment”.

The Worker took on the role in good faith on the clear understanding that she would be remunerated for same once the relevant negotiations had been completed. It is Fórsa’s position that after receiving the “blended” acting allowance the Worker should have been assimilated to the new Area managers scale as, like her colleagues, she was permanently appointed to this grade. Fórsa argues that the Worker’s payslips reflect her appointment to the Area Manager position and, to date, the agreed terms and conditions of said position apply to her.

Fórsa believes that a colleague of the Worker also was treated for breast cancer and was allowed to remain on her existing terms and conditions of her Area Manager position. Fórsa also believes that there is a further precedent whereby the Worker’s colleagues were allowed to move sideways and remain being paid as Area managers.

It is Fórsa’s view that it can be clearly seen from an email issued by PM on 29th March 2012 to all Area Managers that the Worker was deemed to be in the role. In addition, the Worker has been sighted in a national Report of August 2013 “With another Area Manager currently on long term sick….”

It is Fórsa’s view that all other Area managers were assimilated on to the agreed rate for the role, except the Worker and it requests that the Worker receives parity. Fórsa argues that the Worker continues to be treated less favourably than her other colleagues in similar positions. Other colleagues who were in the same positions who moved sideways and red circled, kept their agreed permanent appointment of Area Manager terms and conditions.

Fórsa is seeking that the Employer honours the red circle arrangements which the Regional HR Manager made freely to the Worker and that the Worker is re-assigned into her current position on her existing permanent Area manager terms and conditions.   Fórsa requests that the agreed rate for the role to be applied to the Worker effective 1st January 2014, as agreed.

The Employer submits as follows:

The Worker was appointed as Area Manager with effect from January 2012. She was appointed at a named location to cover an absence due to ill health by the post holder in that location. This acting arrangement continued until such time as the Worker became ill in 2013. On return from her illness in 2013, the Worker sought an alternative assignment within the Employer on health grounds. The Employer offered her the post of Regional Quality, Risk and Service Improvement Manager on her existing terms and conditions, which she accepted.

The Employer argues that in 2018 two Area Managers returned to duty following a period of ill health. Both sought an alternative assignment from their Area Manager post due to their ill health at the time. Two posts were offered to the Area Managers referred to in Forsa’s correspondence dated 30th August 2018 were vacant posts which had terms and conditions attaching to these roles. Both roles carried the terms and conditions of Area Manager post die to their role and responsibilities.

In correspondence issued to Fórsa on 22nd November 2018, the Employer outlined the fact that these roles were vacant at the time the staff members sought an alternative role and the staff members were offered those roles on that basis. It was also confirmed that a similar process was undertaken at the time when the Worker was re-assigned to the role of Regional Quality, Risk and Service Improvement Manager post.

The Employer’s position with regard to staff members seeking to redeploy due to ill health is quite clear. The Employer will examine all of the vacant roles it has, across the organisation and will examine the duties, responsibilities and skills required for the various roles. Where a vacant role exists which can be filled by the person seeking to redeploy, it will be offered on the terms and conditions attached to that role. The person seeking to redeploy will not retain their existing terms and conditions from their previous role.

The Employer argues that it offered an alternative role to the Worker in 2013 which she accepted based on the terms and conditions attached to the role at that time. The Worker accepted the role and subsequently, in February 2014 raised a number of concerns through her trade union which were not pursued at that time.

The Employer has treated all three staff members referred in Fórsa’s correspondence equally. They have identified a vacant position to which the staff member could be transferred. They have offered the post on its own existing terms and conditions to the staff member and were accepted, they have reassigned the staff member into the post with the terms and conditions attached to the psot which was vacant in the first instance.

It is not possible for the Employer, or indeed any organisation to create posts in to which you can transfer people who need to be transferred due to ill health. It is also not possible to transfer staff members into posts where the salary attaching to the post would be significantly less than the staff member’s existing salary and allow the staff member to retain their higher salary on transfer.

In relation to this dispute I find as follows:

The dispute, in essence, relates to whether or not the Worker should have moved to a new post due to her ill health on, at the time, her existing terms and conditions or on the terms and conditions attached to the new role.

There was no dispute that the Worker applied and was appointed an Area Manager in January 2012. The Worker was put on the agreed applicable pay scale and received “blending allowance” similarly to other Area Managers. Her payslips showed her position as “area manager”. She subsequently, following an illness applied via the Expression of Interest process for an alternative role.

I note the Employer’s clarification that if a vacant role is available to be offered to a staff member returning from sick leave it would be offered on its own terms and conditions and not those already held by the staff member. However, the letter dated 20th September 2013 from the Regional HR Manager to the Worker in respect of the nee role states clearly: “I am pleased to inform you that your application has been successful and it is proposed to appoint / re-assign you into the above position, on your existing terms and conditions of employment” (my emphasis). There was no other evidence presented to me in terms of the “existing terms and conditions of employment” bar the submission that the Worker terms and conditions at the time were those applicable to an Area Manager.

In the particular circumstances of the case and without setting a precedence, on the basis that the agreement to transfer the Worker to her new role was on her existing terms and conditions of employment, I recommend in favour of the Worker.

Having considered the submissions of the parties, I recommend that the Worker should continue to receive the same entitlements (grade and pay) she had as the Area Manager on a red circle basis with effect from the date of her commencement in the new role.

For the avoidance of doubt I confirm that this recommendation is particular to the unique facts and circumstances of the instant case and that it cannot be quoted or used by either party or any other party in any other case.

Pay – grade- alternative role- red circling