ADJ-00018195

Complainant

Respondent

Anonymised Parties

A Clinical Risk Manager

A public body

Representatives

Damien Tansey Solicitors

 Head of HR

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-00023428-001

22/11/2018

The complainant was unsuccessful in claiming an upgrading under an agreement provided for in the Haddington Road Agreement and felt that the procedures afforded to her to process this claim were unfair.

The complainant is seeking to resolve the issue of her upgrading.  This issue, and the manner in which her requests were dealt with have been marked by unfairness.  The complainant worked as a CNM2 from 2000 until 2008.  In 2008 she applied for and was successful in attaining the role of Clinical Risk Manager a post remunerated at Grade VII level.  In 2014 the complainant learned that the person doing this work in a neighbouring area had been upgraded to Grade VIII under the Haddington Road Agreement.  She also learned of a person in another neighbouring area being remunerated at Grade VIII level in the same role.  The complainant applied for upgrading under the Haddington Road agreement in or around 19^th September 2014.  No decision was forthcoming, and the complainant was forced to enter an appeal.  The appeal was unsuccessful, and she sought a meeting with HR and the Chief Officer but received no reply.

On 30^th June 2017 the complainant wrote to the Chief Officer outlining her case.  It was indicated to her by the General Manager that the grievance was sent to the HR Manager and, at a meeting in August 2017, the General Manager indicated that the HR Manager was working on it as a formal grievance.

The complainant’s contract of employment under the heading Grievance Procedure, states;

‘You have the right to seek redress in respect of any aspect of your terms and conditions of employment under the (respondent’s) grievance procedure details of which are available on the website.’

In the winter of 2017 the complainant applied for a Grade VIII post and was informed by letter dated 14th December that she was not successful. The complainant was very distressed and contacted the Chief Officer who suggested she take some time off.  The complainant took annual leave. The complainant wrote an email to the Chief Officer and the HR Manager requesting them to address the unfairness of her situation.  On 11^th January 2018 the complaint was shocked to hear from her HR Manager demanding her immediate return to work and stating that there would be no further approval for annual leave for her. There were other inaccuracies in the same letter.

The complainant attended a meeting with the HR Manager on 15^th January 2018.  The HR Manager refused the complainant permission to bring a friend to the meeting as she was not a work colleague or union representative.  He further indicated that the meeting was exploratory, and that representation was not needed.  While the complainant did have another member of staff with her at the meeting she was unaware that it was a formal grievance meeting.

On 22^nd January 2018 the complainant spoke on the phone with the HR Manager about possible solutions.  On 26^th January she received an email from the HR Manager attaching a letter which was headed ‘Stage 3 Grievance’ which shocked the complainant.  When she had tried to raise this as grievance in June 2017 it was dealt with and she had no idea that the issue was unilaterally moved to Stage 3.  The HR Manager had escalated the matter to Stage 3 and dealt with it in one fell swoop.  The basis of his decision was that the Grievance Procedure did not cover matters relating to improvements in pay but not before referring to a review in 2016 regarding Grade VIII positions.

Preliminary Issue

The claim is submitted under Section 13 of the Industrial Relations Act 1969.  Section 13(2) of that Act indicates that the WRC would be prohibited from the determining a ‘rate of pay’ claim which would have an impact on a body of workers.  If this claim were successful it could establish the rate of pay for the role nationally as Grade VIII.

Secondly, successive Public Sector agreements are clear that cost increasing claims are prohibited.  The claim in this case is cost increasing.

Substantive Issue

In 2013 the respondent undertook a regularisation process of staff who had been ‘acting’ in a higher position for a defined time.  The complainant made an application under point 6 relating to staff undertaking higher duties without pay.  The claim was not determined internally by the respondent, so the complainant lodged an appeal with the nationally appointed arbitrator.  The appeal was unsuccessful, and the advice given was to pursue Job Evaluation. The appeal procedure was put in place in accordance with the dispute resolution mechanisms contained in the public sector agreements.  The outcome of the independent arbitration was deemed to be final and binding in determining the appeal.  The respondent therefore contends that the WRC does not have jurisdiction to hear any subsequent claim for regrading with reference to the final and binding decision made by the appeals arbitrator.

The respondent is obliged to conform with the Code of Practice for appointments which requires an open and transparent selection process.

The respondent has undergone several reorganisations since the complainant was first appointed to the Clinical Risk Manager role in 2008.  In 2015, resulting from a national report, Community Health Organisations were established, with the respondent’s area of responsibility being incorporated into a new region with a number of other counties - the CHO1 area.  The complainant has cited two comparators in the newly established area who undertook a similar role but were remunerated at Grade VIII.  It is acknowledged that a grading anomaly did exist for a period of time which arose due to individual circumstances.  In one, the post holder was successful in a claim for regularisation under the Circular; in the second, by virtue of reassignment from a different functional area and the respondent was obliged to honour rights gained.

A national agreement of the QPS service was undertaken in 2016.  The outcome was that each CHO would have a lead Grade VIII and three operational QPS at Grade VIII. Subsequently, one of the cited comparators left the role and was replaced by someone at Grade VII.  Another new post within the Respondent was created and again at Grade VII level. When the remaining comparator vacates her post, it will be replaced at Grade VII level.

The lead post at Grade VIII level was filled by open competition.  From a pool of 19 applicants the complainant was placed second.  She made no complaint or appeal of the competition and such a mechanism is available.  The complainant had made use of such a mechanism in a previous competition.

The respondent believes that Grade VII is the correct grade for the position.  If the complainant believes that the post should be at a higher level than the appropriate mechanism is through national negotiations between unions and management.

Preliminary issue.

Section 13(2) of the Industrial Relations Act 1969 provides as follows;

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner

The respondent has argued that this claim relates to a rate of pay.  I accept this argument and therefore find that I do not have jurisdiction to recommend on this element of the dispute.

Other Issues

The complainant has stated that the complainant does not alone relate to the rate of pay but also to the manner in which the claim was dealt with by the respondent.

The complainant has argued that the clause in her contract dealing with grievances provided that she could raise any matter and that, by excluding her complaint from consideration under the grievance procedure on the grounds that it related to pay, the respondent was in breach of this clause. 

The complainant’s contract refers to the grievance procedures stating;

You have a right to seek redress in respect of any aspect of your terms and conditions of employment under the (respondent) grievance procedure, details of which are available on the website

The clause therefore does not stand in isolation but must be read in conjunction with the formal grievance procedure referred to as being available on the website. The respondent employs a large number of staff and therefore requires a systematic approach to dealing with claims.  To this end collective bargaining plays a significant part in determining the appropriate pay levels for the various grades and roles and it is not unusual in such circumstances to exclude individual pay claims from the ambit of the grievance procedure.  In effect the complainant was arguing that the appropriate rate of pay for her role was higher than Grade VII.  It would be unreasonable to expect the respondent to deal with such claims on an individual basis where a national grade existed.

The Haddington Road agreement essentially provided for staff who had been acting up to be regularised subject to meeting certain conditions. It also provides in Clause 6 that;

Persons for whom it can be demonstrated that an acting arrangement was appropriately approved and that they meet the criteria set out above, but that due to the moratorium and/or financial restrictions they have not been in receipt of the allowance, will also be encompassed by this process.  There must be documentary evidence deeming the individual as being in an acting position and carrying out the full responsibility of that position.

The complainant has argued that she failed in her claim under the Circular by a few weeks.  She also has argued that by she was disadvantaged by being effectively required to use the Appeals stage without having had the opportunity to make a case in the initial stage as she received no response to her submission.

The circular covering this process arose from a national agreement and I note that the appeals process was agreed to be final.  It has been argued that by denying an initial application under the circular, and only allowing her an appeal, that the complainant has been denied appropriate fair procedure.  Having heard the evidence and looking at Clause 6 above it is difficult to see how the complainant could have been successful in a claim for permanent upgrading under this clause.  I therefore do not believe that she suffered any significant disadvantage in the way the procedure was implemented.

The respondent has acknowledged that an anomalous situation existed whereby two others were remunerated at Grade VIII but that these arose effectively from, in one case a successful claim under the Haddington Road Agreement and, in the second, a ‘red circled’ arrangement arising from a reassignment.  It would not make sense for outcomes from an agreement intended to address anomalous situations to be used as the basis for broader application.  From time to time ‘red circled’ arrangements have to be put in place to address particular issues and it is generally accepted that such arrangements cannot form the basis for a broader claim, otherwise it would be difficult to resolve such problems. I note that an agreed structure is in place and that the respondent is working towards the elimination of the anomalies comprehended by the red circled arrangement and I therefore don’t believe that either of the two examples was an appropriate comparator for the complainant.

The complainant was unsuccessful at interview for a post at Grade VIII level.  She did not appeal the outcome as provided for under the procedure and therefore I have no reason to believe that there was any flaws in the selection procedure.

In relation to the meeting held on 15th January 2018 it is clear that both parties had a different view of whether or not it was conducted under the Grievance Procedure.  While I accept that the respondent acted in good faith, nonetheless the onus was on the respondent to ensure that the complainant was made fully aware in advance of the meeting that it was under the Grievance Procedure and of her right to be accompanied as provided for in that Procedure. If discussion arose during the meeting in relation to the nature of the meeting then it should have been reconvened. However, having heard the substantive arguments on this case I do not think the complainant was significantly disadvantaged and do not see any point at this stage in recommending any reconvening of a hearing.

I find that I do not have jurisdiction to make a recommendation in relation to the pay element of this dispute. 

The complaints in relation to handling of the claim are not upheld.

Claim for upgrading on a permanent basis