Complainant

Respondent

Anonymised Parties

A Manager (2)

A Third level Institution

Representatives

SIPTU

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-00038982-001

31/07/2020

This is one of two complaints heard together on account of the similarity in the case being made. It arises from an unsuccessful application to have the complainant’s post regraded at a higher level. My decision in each case is the same.

The complainant says that the respondent failed to apply the criteria outlined within the Regrading Process which placed her at a disadvantage.

She says that commitments given to her in 2016 failed to apply the appropriate weighting to both her competencies and the known comparators and she seeks the appropriate grading differential to be applied.

Alternatively, she would like to have an Independent review of the duties and responsibilities currently being carried out by the complainant.

The complainant commenced employment with the respondent in 2002 on several fixed term contract before taking on the role of a Manager in 2005. Throughout that time, she has also carried out her duties with diligence and professionalism.

In 2014, the employer commenced a process of a quality review of the grades and roles and arising from that process several recommendations arose from that process.

Following consultations, the complainant raised the disparity that existed between the roles she carries out and those of five other comparable managers.

She made an application in 2017, for the role to be realigned with colleagues who perform a similar role, and this had the support of her line management.

The applicationwas rejected and there was no option to appeal.

In 2018, with the assistance of the WRC an agreement was reached on applications to have the roles evaluated against the comparators.   But while the respondent acknowledges the disparity, nothing has been done to rectify it.

The process of discussions undertaken by the employer had taken a considerable time, and in 2020, a new system was put in place.

The complainant entered this process in good faith expecting that the employer would deal with her issues fairly.

Any such review must be objective must ensure that the process would afford the participants the right to use a comparator and the role would encompass the breadth of their experience, practical nature of her experience, level and significance of achievement"

Other key variables identified within the criteria should also reflect the marking schemes in comparison to the five managers, which would have identified the relevant experience, skills, knowledge, and attributes of the complainant.

SIPTU contends that while other issues which have identified the flaws within the process, one of the most noteworthy was the failure of the Assessment Board to allow a comparator or to examine the dual roles undertaken by the complainant.

In summary, the Assessment Board was in breach of natural justice and acted unfairly in failing to apply the protocols associated with any Grading process that afford the individual the 0pportunity to name a comparator.     

The complainant requests a recommendation that this complaint is well founded and that the employer should engage an independent investigator to review the process undertaken by our members.

It seems that both complainants appear to believe that their posts should be aligned to a higher salary grade.

Applications were made on the complainants’ behalf under the respondent’s re-grading but both complainants were dissatisfied with the outcome of the process which was that these posts should not be realigned to the grade level claimed.

In 2019, SIPTU raised an issue with the respondent in respect of the grade levels of some staff members.

This dispute was originally framed as a collective dispute by SIPTU and a referral was made to the conciliation service of the WRC.

Over the course of 2019, the respondent attended conciliation but stating its position that there was no re-grading mechanism. In the past there had been schemes such as a personal promotion scheme where posts already in place could be re-evaluated but these schemes ceased on Government instruction following the economic downturn.

The respondent position during the conciliation process was that the only way to achieve an upgrading was through open competition but that it was actively seeking to introduce a regrading scheme given the fact that posts were evolving over time without any system for reviewing them.

The respondent engaged in prolonged and protracted efforts to obtain approval from the Department of Education and Skills to introduce such a scheme. At the WRC, the parties agreed that it would pause the conciliation process whilst attempts were made to have a re-grading scheme approved.

A commitment was given by the respondent at the WRC that if such a scheme were to be implemented, the posts at the centre of the dispute would be fairly assessed under this scheme to ascertain if a re-grading were justified.

On 2nd July 2019, the respondent received approval for a re-grading scheme that would allow for the promotion of an incumbent, without competition but the approval is effective only from that date.

No retrospection was allowed when approved.

The process provides the facility for a review on an individual, standalone role which has not been graded in over four years, and which over that time is felt to have grown and evolved across the factors on which jobs are sized.

 If upgraded, the incumbent with over four years’ service in a role may be promoted without competition, subject to performance certification.

It should be noted that the respondent has had a Job Grading Committee for many years whose members include a union representative. The committee has operated extremely effectively with little dispute or challenge in evaluating the appropriate grade level for new administrative roles in the University.

The methodology for assessing the appropriate grade of a role as used by the existing Job Grading Committee was adopted for the newly approved process.

Roles would be graded using precisely the same factors that were used for the previous ten years or more by the Job Grading Committee. 

These factors are work complexity, decision-making, impact of role, capability, relationships and supervision. Some minor changes were applied to the JGC criteria to align with the DES conditions of approval.

(Details were submitted of the requirements for an application under the new process)

One of the conditions of approval for a review was that there can be no appeals other than the right which always exists for an employee to refer a matter to the WRC.

The respondent consulted relevant stakeholders including the trade union on the implementation of the framework to be introduced, following which the union indicated its agreement to the scheme.

This agreement included the basis for how applications would be assessed and the criteria to be applied for this assessment. Within this policy, the process for assessing applications and the structure of the assessment committee was outlined, but it was basically the existing job grading policy with some amendments. 

The policy contained the same scoring mechanism that has been in place for the previous eleven years and which was used to assess similar roles to that of the complainant.

It included union representation and used a well-established existing scoring mechanism that it could stand over.

SIPTU claims that the complainant is carrying out similar work to comparator managers but on a lower grade. It is the case that there are comparable manager posts that are graded higher than the posts held by the complainants, but it is inaccurate to state that the roles are identical simply because they are comparable.

There are differences in size and complexity in respect of the function of different managers within the respondent. And it is the post that is assessed, not the person.

The grading committee assessed the applications using the criteria as agreed and concluded that (this complainant should be regraded (but no to the level sought).

The new grading system has been successfully utilised to date with over 80% successful candidates for the 2019/2020 period.

It is unfortunate that the complainants’ applications were unsuccessful, but the respondent fulfilled the commitment made at the WRC by implementing a successful regrading framework.

There are differences in size and complexity of the function of different managers within the respondent. And it is the post that is assessed, not the person.

The post was fairly assessed by the Committee resulting in the correct outcome.

There are three issues arising from the complaint.

The first is whether the respondent applied the terms of its own re-grading scheme and did so fairly.

Following conciliation at the WRC the parties did well to secure approval for a new scheme that would permit the claim to be properly evaluated, and this was done.

(For some reason the respondent calls its re-grading scheme a job re-sizing framework. While corporate jargon of this sort is fashionable it is preferable that the language used should have some regard to its ordinary meaning in the English language. A job being re-graded is not being ‘re-sized’.)

Unfortunately, the complainant’s claim did not succeed to the extent she had hoped for. The complainant makes various criticisms of how the exercise was conducted; no comparators were permitted, for example.

It is noted that for reasons that are not clear, the exclusion of an appeal is something that was imposed on the respondent by the ‘parent’ Department, and I return to this below. It is not acceptable in principle.

The second issue is whether the terms of the grading scheme itself were breached.

A referral under this legislation will only succeed where there has been some breach of the employee’s rights.

This could mean either that workplace level procedures were not applied properly and fairly, or that, even if they were there was some intrinsic unfairness about them that requires a remedy. (This concept of rights found expression in the predecessor to the adjudication system for dealing with such complaints; the Rights Commissioner service).

A further requirement of a referral under this legislation is that a person avail fully of the machinery at the level of the workplace for resolving such issues.

The WRC cannot become a ‘court of first instance’ for workplace disputes, as its name indicates. The sensible place for the resolution of workplace relations problems is the workplace, and only when this has not succeeded should the adjudication service be engaged.

There is a third issue. The complainant seeks some sort of independent review, (erroneously referred to in the unions submission as a ‘mediator’; this is not what mediators do,) to carry out ‘a review of the duties and responsibilities’ currently being carried out by the complainant.

To address these issues in turn, the criticisms made of the manner in which grading review took place did not identify any breach of the agreed procedures and mechanisms for the conduct of such reviews.

If there are defects in the current system and it needs to be changed that is not a matter for a WRC Adjudicator. It is one between the parties, who have shown no lack of commitment and imagination in working together to improve their systems in this area and they deserve credit for having done so.

The terms of the existing scheme were the subject of consultation with the complainant’s trade union and they were agreed.

That does not mean they cannot be changed, but they will have to be changed through the same process that brought them into being. This is a matter that must first of all be processed at local level.

The complainant’s disappointment is understandable but not every claim will succeed. (According to the respondent about twenty per cent do not).

I am concerned that there is no appeal mechanism and I recommend below that this be reviewed.

By way of a note of caution, an appeal in this context is rather different in some respects to an appeal of a decision in the disciplinary area, for example.

In the disciplinary context, there is an element of subjectivity which is missing in a grading exercise where the various systems and criteria introduce more systematic objectivity that is also absent in pay bargaining, for example, and where different factors are in play.

While I believe there should be an appeal layer as a matter of fairness, it should not simply be a ‘second bite at the cherry’ for a dissatisfied applicant and a re-run of the grading exercise.

I leave it to the parties to determine criteria, but, to proceed to an appeal, a potential appellant must be able to demonstrate a prima facie case that has some prospect of success based on a significant defect in the original exercise, in particular a failure to follow the procedures set out.

It cannot simply be because the outcome of the process is not what the applicant had hoped for.

From all of this it will be clear that the complainant’s request for an independent review is something which cannot be considered.

To do so would entirely undermine the proper conduct of industrial relations between the parties. It is no less than a request to set aside the procedures agreed between the union and the respondent which is entirely outside the jurisdiction of an Adjudicator under this legislation.

In conclusion, I find that the complaint is not proper to a referral under this legislation.

There has been no breach of the agreed procedures for the conduct of the re-grading and any review of that system is a matter for the parties at first instance in line with their local arrangements for doing so.

For the reasons set out above I do not uphold complaint CA-00038982-001.

The right to an appeal is an important safeguard against process failures, as well as copper fastening the fairness of the process, and I recommend that the parties enter into a discussion on the introduction of an appeal option, having regard to the type of general criteria suggested in my Conclusions.

Re-grading, right of appeal