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ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00016706
Complainant
Respondent
Anonymised Parties
A Special Needs Assistant
An E & TB
Representatives
Des J. Kavanagh HR Consultancy Ltd.
IBEC
Complaint(s):
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-00021701-001
10/09/2018
Date of Adjudication Hearing: 08/01/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concern the seniority listing of a SNA in a named E &TB School in East Leinster.
1: Summary of Complainant’s Case:
The Complainant (SNA A) was/is employed since February 2014 by the E&TB.
She is currently ranked at seniority position No 3 in her current school – School A. The dispute centres over the seniority ranking of SNAs in this school. The Seniority Ranking had a major bearing on the allocation of SNA posts, either 100% or 50% in School Year 2017/2018.
The Complainant alleged that the allocation of a colleague, SNA X, at Position No 2 in the List was an error. SNA X had taken Redundancy in 2012. The SNA Service of SNA X claimed during the Years 2012 to 2014 did not properly exist and were at best a spurious creation. She had no SNA service at all during 2014 to 2016. The fact that credit for Seniority purposes is being allowed (for 2012 to 2014) for Seniority calculation purposes to SNA X and it appears for 2014 to 2016 is grossly disadvantageous to the Complainant. The Complainant claims redress in the calculation of Seniority and that she be placed ahead of SNA X in the listing.
Extensive and detailed reference was made to numerous Department of Ed and S circular letters to support the Complainant’s case.
The Complainant’s advisor acknowledged that the Respondent appeared to want to act generously towards SNA X. This was acceptable but not at the cost of an injustice to another staff member, in this Case the Complainant.
2: Summary of Respondent’s Case:
The Respondent pointed to the fact that this case had already been the Subject of an Adjudication – Adj-00012301 in June 2018 and was therefore res judicata.
None the less the Respondent pointed to the fact that they had fully investigated the entire situation and were happy that SNA X had been properly credited with Seniority. A full Grievance Process was followed in October 2018 (post the issue of Adj 12301 in June 2018). It was determined by the newly appointed CEO who heard the final Appeal stage of the Grievance that the seniority listing was correct.
The CEO in her Grievance outcome letter had made special provision to allow the Complainant to remain in School A for the 2018/2019 School Year.
The Complainant in School Term 2017/2018 could have transferred to a full-time position in several equally convenient local schools but choose to stay in School A at a 50% posting. Accordingly, no loss of earnings was due to her.
3: Findings and Conclusions:
In Adj-00012301 referred to by the Respondent the Adjudicator stated that
It is my view, under the Industrial Relations Act 1969, that a local resolution of this case between the parties, hopefully using a Mediation Service, is the only possible satisfactory outcome.
Accordingly, I am recommending that the services of a skilled Mediator be engaged as soon as possible
In addition, I am recommending, under the Industrial Relations Act,1969, that the Complainant not be disadvantaged from a calculation of service point of view from any comparisons with the other SNA in this case. In other words, the Complainant be deemed to have, as a holding measure, until a comprehensive local agreement is achieved between the parties, equality of seniority with SNA X.
It is now with considerable further disappointment that I have to note that the attempts at Mediation proved unsuccessful and that the case has come back to the Workplace Relations Commission.
I did not accept the res judicata argument as Adj-00012301 has expressly provide for a return to the WRC if a local resolution was not achieved.
I noted that that Grievance Outcome from the Stage Three Grievance Process in October 2018 was obviously a considered judgement and was clearly aimed at helping achieve an amicable resolution to what is a very difficult local School situation. Mention was made of a “nominated suitable liaison” being appointed to “communicate” with the Complainant
I noticed that the Chief Executive referred to the staff members “Status under law” and during the Oral Hearing reference was made to communications with the Legal Advisors of the Board regarding the employment status of SNA X. There was inference that legal employment issues outside the remit of this specific case might have had a bearing on matters. No direct or written evidence /copy correspondence was produced.
I was also very conscious of the fact that SNA X, whose status/employment history was in effect a major aspect of this case was not represented at the Oral Hearing or had any written evidence submitted on her behalf.
None the less having considered all the evidence both oral and written presented but specifically the various Dept of Ed and S circulars presented (as opposed to any specific personal employment details of SNA X) I now feel that it is necessary, under the Industrial Relations Act,1969, to give definite Recommendations on some of the key points of this case.
The Recommendations are set out in Section 4 below.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation(s) in relation to the dispute.
I now make the following recommendations
In view of the very obvious local peculiarities and sensitivities in this case and the ultimate need for the parties to all work together amicably, going forward in a school setting, I strongly recommend that the Parties once again seek the services of a skilled HR/IR Facilitator to engage with all concerned to achieve an agreed satisfactory outcome.
However, to avoid all doubt on some key matters, the Complainant is to be regarded as being at Position Two in the Seniority listings in School A both at present and especially in 2017 when the School A 100% SNA post was in question. The 100% post in 2017 in School A should have gone to the Complainant.
I base this Recommendation on a clear reading of the various Dept of Ed and S circulars (beginning at 58/2006 ,59/2006 37/2013, 44/2014 and forward) presented by the Complainant’s Representatives. The Circulars are not ambiguous, and the meanings are clear cut as regards this case. I noted the cited correspondence from Mangers in the E& T Board and from the Dept of Ed & S in this connection.
On any standard of probability and basic interpretation of Circular letters, the evidence presented in support of the Complainant was compelling.
The Complainant be awarded the short fall in salary that arose from being on a 50% post when a 100% post would have been correct for the school term 2017/2018 and any shortfall that may have also followed for the School term 2018/2019.
Dated: 14th May 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee