Complainant

Respondent

Anonymised Parties

A Manager

A Community Operations Division of the Health Sector

Representatives

Fórsa Trade Union

The Respondent’s Assistant Director of Human Resources

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-00034479-001

06/02/2020

In 2014, following a competitive recruitment process, the complainant was appointed to his current role as a General Manager in a specific unit of the respondent’s operations division, which I will refer to as “Ops 1.”.  In this capacity, he headed up the unit and he recruited and managed a team of six staff, at various levels of seniority.  Two of the complainant’s colleagues who carry out similar roles in different operational divisions are at the grade of Assistant National Director.  The complainant and these two employees report to the division’s National Director.  The complainant argues that his role is on a par with his two colleagues in terms of complexity and accountability and that he should be graded at the level of an Assistant National Director.  The respondent’s position is that the complainant’s role is properly graded at the level of a General Manager.

At the hearing on July 22nd 2020, Ms Ryan set out the complainant’s case for a re-grading of his role and a summary of his position is set out here:

1.  The complainant reports to a National Director, which means that there is a two grade gap between him and his line manager.  He believes that a more appropriate organisational structure would see him as an Assistant National Director reporting to a National Director. 

2.  The complainant’s colleagues who hold similar roles in other operational divisions and who report to the National Director are Assistant National Directors.  As a member of the senior management team, this means that the complainant is perceived to be not equal to his colleagues.

3.  The complainant’s role comprises two operational units whereas his colleagues each have responsibility for one unit.

4.  In 2015, a role similar to that of the complainant was advertised in another operational area at the level of Assistant National Director, having been up-graded from the level of General Manager.  The complainant argues that this has set a precedent for the re-grading of his role and was the basis for his request to his National Director to consider his case. 

5.  In December 2017, the complainant’s line manager assured him that his grade would be reviewed.  The complainant’s understanding was that his re-grading would be supported by HR, but no action was taken to progress his case.

6.  In early 2018, during a consultation process on new ways of working, the complainant joined a group comprising Assistant National Directors and National Directors to collaborate on the design of the future structure of the organisation.  He was the only person who participated in this group at the General Manager grade.

7.  In June 2018, the complainant applied for a role as Assistant National Director in a new functional structure in his operational area.  He was placed second on the panel.  Ms Ryan said that this demonstrates that the complainant is suitable for a job at the Assistant Director level.  The person placed first on the panel accepted the position and is still in the role.

Precedent Cases

In support of his case for a re-grading, Ms Ryan submitted details of a number of decisions issued by  the WRC and the Labour Court which demonstrate that there is merit in his case. 

ADJ-00015387:  An Employee and a Health Service Provider

The complainant had applied for and been appointed to a grade VIII role, but this was not regularised in 2012 due to the financial crisis at that time.  The adjudication officer recommended that she be made permanent in the senior position.

ADJ-00013150:  A Worker and a Health Service Provider

The complainant was appointed to a temporary position as a Director of Nursing in 2013, but by 2018, her position had not been made permanent.  The adjudicator recommended that she be made permanent and paid €3,000 in compensation.

ADJ-00012940:  A Worker and a Health Service Provider

In very similar circumstances to the previous case, the complainant had been carrying out the role of Assistant Director of Public Health Nursing for over five years and the adjudicator recommended that she be made permanent and paid €3,000 in compensation.

ADJ-00025663:  A Manager and a Health Service Provider

The adjudicator recommended that the complainant’s role be evaluated in respect of its alignment to the grade of Assistant National Director.

LCR21771:  HSE and Fórsa, representing five employees

The Labour Court recommended permanent re-grading for five senior HSE employees who had been acting up in grades higher than their actual grades for between four and seven years.

LCR22201:  HSE and a Worker

The worker was engaged on a temporary specified purpose contract for five years and claimed an entitlement to the grade on a permanent basis.  The Labour Court upheld the decision of an adjudication officer and awarded the complainant conversion to an Assistant National Director role.

Conclusion

Since he commenced in his current job in 2014, the complainant has had a significant role in the management of risk and in the improvement of patient safety and quality in Ops 1.  He has increased the oversight of section 38 and 39 providers of care and he undertook an initiative to reduce the cost of state claims.  He was appointed to co-chair and lead certain forums established by the HSE and HIQA.  In July 2018, he was seconded to a specific job to support the management of a crisis in the health service.  It is the complainant’s case that he has been working above the grade of a General Manager for nearly six years.

Ms Ryan acknowledged the constraints on cost-increasing claims contained in section 8.3 of the Public Service Stability Agreement; however, she said that this claim is not for an improvement in pay and conditions, but is a claim for an employee to be paid the correct salary, comparative to that of his colleagues who carry out work of the same value.

Timeline

The respondent’s submission set out a chronology of events from June 2017 when the complainant wrote to his line manager requesting an evaluation of his role and grade.  Management structures were being reviewed at that time and the complainant’s line manager referred his request to the National HR unit.  Between June and November 2017, the complainant also wrote to the National HR unit asking for his role to be re-graded.

On December 17th 2017, the complainant received a letter signed by two Deputy Director Generals, confirming that his role from January to March 2018 would be at the level of General Manager.  The complainant was informed that his future role and responsibilities would be finalised before April 1st 2018 and that he would be fully involved in that process.

The outcome of the consultation process resulted in a new structure and the appointment of Assistant National Directors for the functions of HR, Finance and Quality and Patient Safety, where the complainant worked.  The complainant’s role remained at the level of General Manager and the respondent’s case is that he was engaged in the consultation process that resulted in the new structure. 

In July 2018, following a particular crisis in the health services, the complainant was assigned on a temporary basis to support the management of a crisis in the health service, a role he carried out until July 2020.

In August 2019, at the instigation of his union, the complainant attended a meeting with his line manager and the Assistant HR Director (who attended this hearing on July 22nd 2020).  The union’s objective at the meeting was to seek a local resolution to the complainant’s grievance concerning the fact that he had had no satisfaction from HR regarding his request to have his role re-graded.  A summary note of the meeting was submitted in evidence and it shows that the complainant remained in his temporary assignment and that he expressed an interest in transferring permanently to that operational unit, which I will refer to as “Ops 2,” when his assignment ended.  His transfer to this unit had previously been raised in the restructuring discussions in 2017.  The line manager agreed to explore the possibility of an Assistant National Director role in Ops 2.  Ultimately, no such role was identified and this was confirmed to Fórsa on September 10th 2019.  This complaint was submitted to the WRC on February 2nd 2020.

In July of this year, the complainant was assigned to a new role in Ops 1.  Pending a decision regarding a new organisational structure in the context of changes to support Sláintecare, he continues to report to the National Director of Ops 1, but he has an operational reporting relationship to the Assistant National Director in his new unit.

The Respondent’s Position

It is the respondent’s case that the complainant’s role is properly aligned with the functional leads for HR and Finance in Ops 1.  These roles are at the grade of General Manager and the position was set out in a code of governance in October 2015.  This structure changed in June 2017 and four operational divisions were transferred under the leadership of one National Director.  Along with other roles, the complainant’s role was reviewed during 2017 and 2018.  A new Assistant National Director role in Ops 1 was approved.  This is the role for which the complainant was placed second on the panel.  The complainant’s role and the other functional leads in HR and Finance continue to be remunerated at the grade of General Manager.  Further changes will emerge in the context of Sláintecare.

In summary, the respondent’s position is that there is currently no vacancy for an Assistant National Director in the functional area where the complainant works.  He has not been working in an approved post of Assistant National Director and that there is no basis for a re-grading of his job.

It is generally the case that a person in a management role will have a personal investment in their own job and the level at which it is positioned in an organisation.  The complainant is a senior manager and the respondent said that he and others at that level do very important work.  The complainant has had an impressive career and his commitment and achievements, particularly since he was appointed to the General Manager role in 2014, show that he has been an exemplary public servant.  He argues that he is performing above the standard of the requirements of his role and that he should be upgraded to the level of an Assistant National Director.

I accept the complainant’s evidence that he is highly competent and that he has made a significant contribution to improvements in the quality of care and patient safety.  I note from correspondence which he submitted in evidence that his skills are highly valued by the people to whom he has reported and I’m confident that, in many respects, after six years in his role, he is operating above the expected level of competence for his grade.  This is a feature of career development for some individuals; they carry out their jobs with commitment and skill and, after some time, they develop to become more competent than they were when they applied for the job.  It does not follow however, that the job should be up-graded to match the job-holder’s enhanced capabilities.

Most people in these circumstances who are ambitious for advancement apply for vacancies that come up at a grade above their current grade.  In 2015, a competition was announced for a vacancy for an Assistant National Director, but the complainant decided not to apply.  He was just one year in his new role at that stage and he wanted to remain with his team which was in the early stages of development.  In 2018, when he applied for a new Assistant National Director vacancy in Ops 1, he was placed second on the panel of successful candidates, meaning that he missed being offered the job by probably just a short few marks.  This is a feature of a competitive process, and the fact that the complainant is considered to be suitable for the job is not a reason to convert his current job to a higher grade.

Job evaluation and grading is not personal to a job-holder; rather is reflects the degree of competence, responsibility and accountability that any person in the job is expected to demonstrate.  The fact that a person develops in their job and carries it out to a very high standard is not an argument for re-grading.

The complainant’s perception that he is not equal to his colleagues in other operational divisions is not an argument for re-grading.  Organisations are generally hierarchical, with the unfortunate outcome that not everyone is equal in status.  The complainant has been involved in various projects and groups with managers who are at a more senior level to him, but this doesn’t mean that he is not a respected member of these groups or that his contribution is not highly valued.

The union raised the fact that in 2015, when there was a vacancy for an Assistant National Director in Quality, Risk and Patient Safety in another operational area, the role was up-graded from the level of General Manager. The respondent’s position is that this was mirrored in 2018 in Ops 1 where the complainant works.  It seems to me therefore, that the objective was for both operational areas to have the same organisational structure.  It is apparent that the respondent organisation has and continues to undergo structural and organisational change; this has impacted on many roles, which have been moved from one operational area to another with a changed management structure.  When he applied to have his role re-graded in 2017, this was at the commencement of a phase of organisational change, which has continued and will continue in the context of the objectives envisaged by Sláintecare.  While he feels that he has been treated discourteously by the HR Department, my sense is that his role has been constantly under review, and that the outcome of that review is that it is correctly graded at the level of a General Manager.  This was confirmed at the meeting of August 22nd 2019, when the complainant’s line manager advised him and his union representative that “there isn’t a 2nd Assistant National Director post” in Ops 1.

I have examined the precedents submitted by the union as examples of where the WRC and the Labour Court has recommended that certain employees in the health sector be made permanent in higher grades.  I note that the majority of these examples relate to cases where an individual was appointed to act up into a higher grade and the issue in question was the failure of the respondent to confirm a permanent appointment.  The complainant is not in an acting up position and it is my view that these precedents do not apply to his grievance.

In ADJ-00025663, the complainant was a General Manager and she argued that her role should be up-graded to that of an Assistant National Director.  The adjudicator recommended that her role be examined and compared to others in her functional area.  I do not recommend this course of action for the complainant in the case under consideration here, as I am satisfied that consideration has already been given to the positioning of his role in his functional area and that a conclusion has been reached that it is properly graded at the level of a General Manager. 

I have given careful consideration to the complainant’s case and I understand that the grading issue is a huge concern for him.  Looking at his situation in a more positive light, he continues to carry out a very important role in a secure employment environment and he has earned the respect of his colleagues and managers.  I would encourage him to consider these positive aspects of his job, rather than what he has not achieved, and to continue to aspire to a more senior role if and when a suitable vacancy arises. 

I recommend that the respondent does not concede to the complainant’s claim to have his job upgraded.

Grievance, claim for re-grading