ADJ-00017890

Complainant

Respondent

Anonymised Parties

Theatre Porter Supervisor

A Hospital

Representatives

DeirdreCanty, Rachel Harty, Jemma Mackey,SIPTU

Sophie Crosbie, Shane O Gorman  IBEC Executives

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-00023071-001

07/11/2018

This claim, lodged with the WRC on 7 November,2018 reflected that issues of responsibility and grading regarding the evolution of the Theatre Porter Supervisor position had been raised without success at the Hospital and the Union now requested that these matters be investigated.

The Employer runs a busy hospital and was not able to concede the claim.

The case was first scheduled to run on 30 January but was postponed due to weather and the nurses and midwives national dispute. The parties presented again in March and having heard both parties on the claim, I suggested an adjournment to facilitate a direct engagement on the claim. The parties returned in June without resolution and both parties presented supplementary submissions which concluded at the end of August.

The Claimant started work as a Porter, Band 3 at the Hospital in 2002. 5 Operating Theatres were running at the Hospital campus.

In 2011, the Claimant was promoted to the post of Theatre porter supervisor and commenced in April 2011.The Union submitted that the claimant commenced work by agreement and without a salary increase commensurate to the new position but was informed that this would be addressed when funds were available.

The Claimant sought a proper rate of pay in June 2012. By now the Hospital was running 8 Theatres. This was referred to a Rights Commissioner and settled by the claimant receiving Band 1 pay with a minor retrospection in 2014.

The Hospital continued to expand its services into eye surgery and further responsibility and supervision followed. The Claimant is now responsible for 8 Porters during his work, while the two posts of Deputy Head Porter manage 6 during their work on alternate shifts.

In February 2016, the claimant sought a review of his salary, he outlined how his level of responsibility had increased and the positive changes he had initiated. The Hospital responded by stating that there was no internal or external mechanism to restructure or regrade a position. He tried again in September, without success and then asked for Union representation. The Union submitted that they had contacted the Employer on three occasions but had not received a response. The claim was referred to the WRC in November 2018.

On the first day of hearing, the Union submitted that the claimant was seeking Clerical Grade 5 pay on the basis that he was clearly doing a job with equal responsibilities as the Deputy Head Porters. The Union outlined that that the claimant holds operational and supervisory responsibility for 8 out of the 14 porters assigned to the Hospital and sought pay parity. Since January 2019, the claimant had covered for a Deputy Head Porter without the payment for the grade.

At the end of the first day of hearing, the parties agreed to a 3-month adjournment during which time efforts were to be made to scope out discussions on the claim. The parties agreed to look at Circular HR 11/2017 for potential applicability. Finally, the Hospital was planning a new mechanism to review claims and expected to outline Terms of Reference.

The Union returned on June 17 and reported that the parties had met on April 9 but had not resolved the claim. The Union understood that the Parent Employer of which the Hospital is an associate had determined that “there were no schemes in existence for claims addressing regrading and Section 8.3 of the PSSA prevailed “.

The Union outlined that the claimant had a job description which had not been reviewed since 2011 and everything had altered at the Hospital since that date. Activity levels had intensified, and he carried a high level of frustration that his claim for pay parity with his Supervisory colleagues could not be addressed.

The Union was not clear if a national uniform grade of Theatre Porter Supervisor was in being and undertook to research and report.

The Union submitted details of a Job description compiled by the complainant on the job he is currently doing. The Union submitted details of a Grade 5 Deputy Porter Manager from a Dublin Hospital and sought to clarify that the claim was not restrained by the Public Service agreement.

 The Union sought a recommendation.

The Employer disputed the claim. The Employer is a Section 38 Hospital and has a Union recognition agreement with SIPTU. It is bound by public service agreements and cost control mechanisms.

In outlining an extensive background to the case, the Employer representative submitted that the claimant and three other theatre porters sought a Group 4 pay scale in 2004, which was conceded. A re banding to Band 2 followed in 2005 in line with service expansion.

In early 2011, the post of Theatre Porter Supervisor was advertised.

Theatre porter Supervisor

This post is the allocation of supervisory duties and responsibilities to an existing Theatre Porter post. Previous Theatre experience is essential.

Closing date April 2011

The Complainant assumed the position in May 2011 paid at Band 2, top of scale.

The Employer detailed the background to the claimant receiving band 1 salary and confirmed that it had been back dated to April 2013. He currently sits at the top of the Band 1 scale.

The Employer recalled the claim for regrading submitted in 2016 which was rejected, citing that there was no national facility to have a post restructured or regraded. The Employer referred to HR Circular 11/2017 as not being relevant to this case as the claimant was seeking to moving to a Clerical grading which was not encompassed by this circular. The claim carried a €12,000 projected costing.

The Employer contended that the Hospital had been fair in their dealings with the claimant. His regularisation to Band 1 should be taken as being in full and final settlement of the issue and was accepted by the claimant in respect of ongoing change. The Hospital was under the impression that the claimant was seeking grade 4 rather than grade 5.

The Claimant is seeking a regrading for which there is no provision anywhere and concession could have a knock-on effect whether other colleagues sought regrading outside their occupational grouping. The Hospital anticipate that they would be bound to advertise any promotional position. The Employer sought dismissal of the claim.

The Employer confirmed that the onsite Portering management had opposed the claim and deemed it unjustified. The Employer confirmed that there a new group was expected to organise on “left over” claims at the hospital.

The Employer was requested to furnish the national norm for payment of a Theatre Porter Supervisor and denied the existence of any mechanism for job evaluation. The Employer distinguished between the Theatre Supervisor role and that of Deputy Head Porter and denied that the roles were comparable.

In feedback following the three-month adjournment in the case, the Employer representative maintained that the claimant had altered his claim from parity to regrading and this aspect had not been addressed internally. The Employer consistently submitted that the Parent Employer and Union Agreement did not permit and inter grade alignment as porters and clerical staff are represented by different unions.

The Employer went on to dispute that the WRC could adjudicate on the claim as it referred to a body of workers in addition, the claim was also prohibited as a cost increasing claim. The Employer drew the attention of the hearing that the circumstances of hospital activity had grounded the 2014 application for regrading as well as the 2016-2019 claim.

The Employer again disputed that the claimant was operating at Deputy Porter level and disputed the Union focus on regrading rather than parity, reliant on a May 2019 communique. the Claimant should accept that once his pay attains top of scale, he is expected to remain on that pay rate unless promotion unfolds.

The Employer considered the Union submission post hearing and filed a supplementary submission mid-July which was exchanged for comment.

The Employer disputed that the claimant was fulfilled a Grade 5 role at the Hospital as the Deputy Porters job was far more comprehensive than his role. The Employer also sought to outline just how different the job was in real terms. The Employer took issue with the Deputy Porter management role at Grade 5 attributed to the Dublin Hospital as not being remotely comparable to that of the complainant’s role. The Employer sought that the claim be dismissed.

I have carefully considered this claim and would reflect a certain ambiguity in the format of the claim as outlined on the WRC complaint form. It was not clear to me from the outset just what the claimant was seeking as between pay parity or upgrading. Quite a lot of time has passed without clarity on this key starting point. I have attempted to listen very carefully to both parties articulated positions in the case. 

The claim for pay while acting for the senior porter manager is not properly before me and I would urge the parties to meet locally to discuss and resolve it.

In seeking to investigate this claim , I was immediately struck by the lack of local engagement  on this particular claim at the Hospital .That was the reason why  I asked both parties to return to base and in familiar surrounds to scope out the potential for a resolution or at least “ a way forward “ .Given that both parties agreed that a Union management Agreement is in place , I would have expected to see a far more trenchant facility for information, consultation and negotiation .

Secondly, I was drawn to the claimants standing vis a vis the national discussions and later Labour Court Recommendation on HR Circular 011/2017. LCR 22066 (August 2019) Both parties accepted that his claim was not comprehended by that process given his pre -existing Band 1 grade.

There was some disparity in the Employer position as a change of personnel occurred during the claim. I cannot accept that this is a claim concerning a body of workers. The claimant is a stand alone claim and I have considered it from that angle.

As I have stated, I listened carefully to each party. I identified a sense of despair from the claimant as he had viewed that he had acceded to all requests to diversify within the service and had a balanced sense that he ought to be rewarded by being reclassified as a Deputy Head Porter.

 The Employer was somewhat vexed by the claim and determined that the claimant was attempting to unfairly crash through collective protections and agreements.

For my part, I noted that the Employer had not retained a sense of the claimants stated changes in his work. It could be that everyone was changing in a changing hospital. However, I got a sense that the claimant was viewed as overreaching by his employer.

My attention was drawn to the antecedent event in this case. The claimant took on the supervisory job without commensurate pay and played catch up for some time after his taking on the post. That was the fundamental wrong in the case for both parties.

However, I accept that he took on the position in extraordinary economic circumstances and with a genuine belief that he had more to offer the role. The Employer believed that the consolidation in 2014 was a full and final settlement on pay.

In fairness, I can identify the genuine and innovative lengths the Employer went to at that time, to resolve matters and the letter of May 2014 is skilfully scripted. I am not certain that the claimant has acknowledged these measures, taken by his employer to anchor his position.

There is a pronounced dispute between the parties on the claimant’s role and function. This is coupled with a lack of any clear road map on how best to resolve this claim, if at all. I am mindful that the Parent employer identified a mechanism to address anomalous claims, but the employer has not actioned this.

 I am investigating a claim for pay parity with a Deputy Porter Position, albeit that this claim was not clearly identifiable from the outset. Both parties now understand the claim. While I appreciate that the Employer has led with limiting arguments such as precedent, cost increasing claim and national prohibition on inter grade mobility, I note that these arguments also overlapped and prefaced the resolution found in May 2014.

The issue at the core of this case is grading of Theatre Porter Supervisors in a changing Theatre Activity Environment and how it appears that there is no national norm for this position. There is also a competing sub issue of equal opportunities and open competition.

 I asked but did not discover just how long senior porters had been placed on clerical pay scales at the hospital? I learned that the current incumbents were in post from 1999 and 2002 but could not establish an Agreement on those grades. Historically, the Hospital had no difficulty hosting a transition from Portering to senior Portering (on promotion) which incorporated a mobility in grading spheres from Porter to Clerical grades. This mobility seems to be present in both hospitals discussed at the hearing and in subsequent submissions. This appears to be an accepted assimilation.

I appreciate that the local senior porters had disputed the claim. However, I did not have the benefit of meeting with these Managers and an external review of a claim at this juncture is unhelpful.

 The claimant has expressed a willingness to take on extra responsibility before agreeing a formal revision. I accept that his job description is outdated but he has acted to his detriment in taking on extra jobs without prior negotiation. The Employer has no immediate plans to incorporate a third Deputy Porter manager in their workforce plan, so the situation is now stalemate.

I am concerned that this stalemate may be counterproductive to the working climate at the Hospital and I have found that the situation needs to be addressed and resolved by the parties.

I have found some merit in this Dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I have found some merit in the claim.

I have identified that the claimant holds a view that he is not being paid properly for the work he believes that he is required to perform. His job description does not match his current role and function and is outdated. This is an unenviable position to be in as a Supervisor.

The Employer is disappointed that constructive and innovative work done in 2014 which regularised the claimant’s role has gone unacknowledged and finds that the Hospital cannot move forward with the current claim for many reasons.

I have found that there is a certain anomaly in this claim. The Claimant seems eager to take on extra tasks and activities before seeking recognition in his pay or job description. This has not permitted the Employer to focus on the proper evolution or construct of the position.

I believe that it is both fair and reasonable for the parties to engage in an agreed external Job Evaluation of the role of Theatre Porter Supervisor commissioned first in 2011 – to the post as operates today, August 2019.

As this is a legacy issue from the economic downturn, this job evaluation should be constructed solely for the claimant in this case and cannot be used as a precedent of any shape.

Both parties should then accept the findings and recommendations of that job evaluation, which should be completed before the end of this year.

Claim for Upgrading/ Pay Parity