Complainant

Respondent

Anonymised Parties

An Employee

A Public Health Service Provider

Representatives

Edward Harte Forsa

Management Representatives

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-00033746-001

13/01/2020

This dispute concerns re-grading and payment of the higher Grade V allowance following competition for a promoted post in 2018. The complaint was received by the WRC on the 13th January, 2020.

The Complainant commenced her employment with the Respondent on 1/12/2005.  By 2018 she was operating at a Grade 111 level. In September 2018, the Complainant attended an interview for a Grade V finance position in the Respondent’s disability service. By letter of the 24th September, 2018 the Complainant was advised that she was “recommended by the interview board”, that she been awarded No 1 place on the panel and that her appointment was subject to satisfactory references, garda, medical and other clearance requirements. By email of 25/9/2018 the Respondent’s HR representative advised the Complainant that “On the basis that you are the highest candidate in order of merit, we would like to offer you a Grade V specified purpose contract for an initial period of six months”. The Complainant responded by email of 26/9/2018 @09:10 and stated that she “…will be delighted to accept this position”. In a further email of 26/9/2018 @14:48 the Complainant was advised by HR that a contract would be sent to her.

The Complainant has maintained that she never received the proposed contract of employment, that she was never offered any contract to sign and nor did she receive any accompanying letter from HR dated 13/11/2018. In this regard, the Complainant maintained that the offer and acceptance of the post occurred between the 24th and the 26th September, 2018 and that there was no mention of a specified purpose contract in the letter of the 24th September which congratulated her on her success. The Complainant also argued that the reference to a specified purpose contract was not correct and was in any event, an invalid use of such a proposed contract.

It is the Complainant’s position that she acted in good faith, that notwithstanding she was being paid at the Grade 111 rate of salary, she commenced and has continued to carry out the duties of the Grade V post since October 2018 and has been doing so satisfactorily. The Complainant maintains that she has continuously endeavoured to resolve her grievance in relation to this matter but to no avail and that she feels “let down”. Accordingly, the Complainant is seeking that her post of Grade V be regularised and that she be paid at the Grade V level backdated to when she commenced in the post.

The Respondent stated that a Grade V specified purpose post was advertised in its Learning Disability Service in 2018 and that the Complainant was appointed to this post effective from the 10th October, 2018 until the 10th April, 2019 – ie for 6 months. The Respondent stated that the Complainant has continued in the post since then carrying out the duties but without the terms and conditions attaching to the post. The Respondent stated that it acted in good faith and that it had applied to its national office for approval for the post to be sanctioned as permanent and had anticipated this would have occurred. The Respondent stated that local management’s “hands are tied” as all such posts must now be approved at national level.

In support of its position, the Respondent furnished the following:

·       Copy of the job specification and terms and conditions of the post of “Staff Officer – Grade V – Specified Purpose for 6 months initially”

·       Copy of an unsigned Specified Purpose Contract of Employment dated 13/11/2018

·       Copy of a letter addressed to Complainant dated 13/11/2018 which – inter alia – stated:

“Dear [Complainant],

I enclose the following documents and would be most grateful if you could sign/complete one set of all documents….

§  Specified Purpose Contract of Employment. Please read in full, sign and return. Please note that your appointment to the new role is conditional upon you returning the signed contract. [highlighted in bold in letter]

§  Employee Set Up Form…….

                           If you intend accepting the offer of employment contained in this letter, please sign

                            and return one UN-AMENDED copy of the enclosed contract of employment…..”

           [highlighted in bold in letter]

The Respondent stated that the Complainant is a valued employee, that it has no issue with her work performance and that she has being carrying out the duties of the post well. The Respondent had understood the Complainant was paid the Grade V rate from 10/10/18 – 10/4/19. The Respondent also referred to negotiations at national level between Fórsa and the WRC to address the position of persons who were in receipt of acting up allowances as at January 2019.

I have considered the written and oral submissions in relation to this dispute including the emails, correspondence and documentation furnished to me and exchanged between the parties. In addition, I appreciate that at the adjudication hearing there was constructive discussion and a willingness expressed to see the dispute resolved. Taking all these matters into account, I find that:

·       Whilst the documentation clearly suggests that the Grade V post was initially to be for a fixed term of six months, the reality of the situation is that the Complainant has been doing the duties since she commenced in the post in 2018. No evidence has been put before me that there was any attempt by the Respondent to either cease or renew the proposed six months contract. The Complainant has continued in the post without interruption;

·       In relation to the matter of the disputed Specified Purpose Contract of Employment and whether or not this was furnished to the Complainant with the Respondent’s letter of the 13th November 2018, of significance for my purpose, is that I have not been presented with any signed contract nor any evidence that such exists. Accordingly, I find that the statement highlighted in bold print in the Respondent’s letter of the 13th November – “Please note that your appointment to the new role is conditional upon you returning the signed contract”– was in reality redundant from the start or simply not acted upon;

·       That although there is no dispute that the Complainant has been doing the Grade V duties since she commenced in the post (and there was some discussion at the adjudication hearing as to the precise commencement date), she has not been paid at the Grade V level for any of the duration of the post;

·       That at this stage, I find that it would be fair and reasonable to regularise the Complainant’s appointment from being an Acting Grade V post holder to being appointed permanently to the post. In this regard, I note the Respondent has helpfully clarified that it was anticipated the post would be sanctioned as permanent. Whilst I recognise that appointments to permanent Grade V posts are managed by PAS (Public Appointments Service) and the Respondent’s national office, I note from the discussions at the adjudication hearing, that national negotiations are taking place between Fórsa and the WRC to address situations similar to that of the Complainant.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to this dispute and accordingly, I recommend:

·       That the Complainant be immediately placed on the Grade V salary scale;

·       That the Complainant be back paid the differential between her current Grade 111 salary and the Grade V salary scale effective from the 10th October, 2018;

·       That the Complainant’s current position as an Acting Grade V office holder be regularised to achieve permanency. Therefore, I recommend that further discussions take place between management at local and/or national level and the Complainant with a view to achieving this in early course.

Payment for promoted post, Re-grading