FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOUTH MUNSTER MABS - AND - A WORKER DIVISION :
SUBJECT: 1.An incremental credit assessment
On the 16 July 2020 the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on the 17 September 2020. The Employer did not attend the hearing. WORKER'S ARGUMENTS: 3. 1. In 2018 the employer underwent restructuring. The Worker applied for an acting up position and was successful. She asked her new manager for an incremental credit assessment. The Board refused the application as it was not made within the first 3 months of her start date. The Worker explained she had, but there was no record of this. 2. The Worker applied for another role with a CIB funded company. She was advised to accept this and then reapply for her previous role that would be advertised. She applied and was successful, applied for an incremental credit assessment and was told she would not be classed as a new employee because she had not left the Employer for a 12-month period. 3. The Worker is seeking that an incremental credit assessment is completed to determine what rate she should have started on in 2017 and that any arrears are paid to her. RECOMMENDATION: Background to the Dispute The within dispute dates from November 2017 when the Worker was appointed as a temporary administrator with Cork MABS on foot of a one-year fixed-term contract. She was informed that she would be paid on point 2 of the administrator scale (€28,992.00 per annum). The Worker requested her manager to arrange for an incremental credit assessment to be carried out. The manger refused the Worker’s request. The Worker received and signed a written contract of employment in January 2018. A restructuring process took place in April 2018 with the result that the Cork MABS became part of South Munster MABS. The Worker successfully applied for the temporary position of Regional Administrator with South Munster MABS, commencing on 10 July 2018. She did not receive a new contract of employment at that time. In May 2019, the Worker verbally discussed with the newly-appointed permanent Regional Manager the possibility of having an incremental credit assessment of her 2017 application conducted. The Manger submitted this request formally on her behalf to the Citizens Information Board (‘CIB’). The request was refused on the grounds that it had not been submitted within three months of the Worker’s initial start date. This outcome was somewhat of a surprise to the Worker as she had never been made aware of the existence of a formal policy in this regard. In October 2019, the Complainant successfully applied for a position with another CIB-funded company. She again requested that an incremental credit assessment be conducted on her behalf. This was completed and as a consequence she was offered a salary at Point 9 of the administrator scale (€38,021.00 per annum). The Worker informed her then Manager in her role as Regional Administrator with South Munster MABS of the outcome of the incremental credit assessment with a view to ascertaining if she could remain in the role but on an increased salary. Her manager again submitted a request on her behalf for such an assessment to be undertaken. The request was once more refused by CIB. In or around that time, the Worker says she was verbally advised by a CIB Manager that should she resign from her current post, accept the position she had been offered elsewhere, and successfully reapply for her ‘old job’ when it was advertised, she would be eligible to apply for an incremental credit assessment in relation to her position. The Worker accepted and followed this advice. Her post with South Munster MABS was subsequently advertised as a permanent position while she was still working out her notice period with South Munster MABS. She applied and was successful in her application. She again verbally requested an incremental credit assessment be conducted. This was refused by reference to a draft policy that had neither been circulated within, or implemented, she submits, by MABS. The draft policy – which was not referred to in the Worker’s contract of employment or the employee handbook – purported to provide that somebody in the Worker’s position was not entitled to the assessment she had requested as she was not classified as a new entrant, there not being a break of at least 12 months in her periods of service with MABS. The Worker initiated a complaint under the company’s Grievance Policy on 11 December 2019. Her employment ended on 13 December 2019. The Worker was contacted by her former Manager in January 2020 on foot of the grievance she had initiated. The Manager told her that the draft policy referred to earlier was not applicable but the Company was applying the CIB policy that had been referenced in May 2019 when the Worker’s first request for an incremental credit assessment was refused. Under that policy, she was told, she could only be classified as a new entrant if she had left MABS for three months or longer. The Worker’s grievance was investigated by a Board Member of South Munster MABS. A meeting took place with the investigator on 14 February 2020 at which the latter read extracts from a document entitled “Criteria for the Application of Incremental Credit in Determining Point of Relevant Salary Scale for New Employees in MABS”. The Worker submits that she had never previously seen this document and it is her understanding that it has never been circulated within South Munster MABS. The outcome of the investigation of the Worker’s grievance was also read to her at the aforementioned meeting. Both documents were subsequently emailed to the Worker on 17 February 2020. The Worker submits that the document, “Criteria for the Application of Incremental Credit etc” does nor state that a request for an incremental credit assessment must be made within 3 months of an employee’s start date. The Worker subsequently submitted a Data Access Request to South Munster MABS and to CIB. The Worker submitted an appeal against the findings of the Grievance Process. She outlined four grounds of appeal. The appeal hearing was conducted by an external HR Consultant. The latter found, the Worker submits, that there was no policy, framework or guidelines in place in South Munster MABS to assist an employee to understand the incremental credit assessment process. The Report also concluded that the Worker was not given a reason as to why her request had been refused nor was she advised on how to appeal the original decision. Furthermore, the Consultant determined that as no timeframes were formally in place to determine when a request for an assessment could take place, the refusal to conduct an assessment at the Worker’s request because there were allegedly not within the stated timeframe was perverse. South Munster MABS conducted another recruitment campaign in March 2020. The Worker successfully applied and received an offer of employment. She requested and was granted an incremental credit assessment with the result that her starting salary was fixed at point 9 of the salary scale (€38,021.00). She submits that this demonstrates that she had been receiving a lower rate of pay up until December 2019 than that to which she had been entitled. The Worker has requested the Court to recommend that an incremental credit assessment be conducted as per her original request in 2017. If that assessment were to demonstrate that the Worker should have received a higher salary than she did at the time, she seeks to be compensated for her financial loss. Final, she is seeking a recommendation from the Court that her two years of service between 2017 and 2019 should count towards an increase in annual leave days and future incremental credit being applied as per CIB/MABS policies. Recommendation South Munster/MABS chose not to attend at the within hearing. Therefore, the Court has before it only the Worker’s submission and version of the relevant issues and events. It seems to the Court that Cork MABS/ South Munster MABS’s refusal to carry out an incremental credit assessment at the Worker’s request on various occasions from 2017 onwards was neither rational nor supported by any extant or promulgated policy document. The Court, therefore, recommends that South Munster MABS (or its successor, as the case may be) review carefully and comprehensively the findings made by the independent consultant who conducted the appeal stage of the Worker’s Grievance with a view to implementing the recommendations of that report in so far as they impact on the Worker herself. Secondly, the Court recommends that a retrospective incremental credit assessment be conducted as requested by the Worker in 2017. Finally, the Court recommends that the Worker be fully compensated for any financial loss that accrued to her as a result of Cork MABS/ South Munster MABS’s decision not to conduct such an assessment in 2017 and subsequently. The Court so recommends.
NOTE Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary. |
