Complainant

Respondent

Anonymised Parties

An Administrative Staff Member

A Health Service Provider

Representatives

Bernadette Walsh n/a

Paul Hume

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-00041044-001

16/11/2020

The Worker is employed as a Clerical Officer with the Employer for the past 33 years.  The Worker submitted a complaint under the Industrial Relations Act, alleging that she should be remunerated as a Grade V or possibly a Grade VI for the work currently undertaken by her.  She submitted that she was in receipt of an acting Grade V allowance in recognition of that work and that the allowance was stopped by the Employer in April 2008 without cause or explanation.  She submitted that if that allowance had remained in place she would have been permanently appointed as Grade V under the terms of Circular 17/2013.  She is seeking to be permanently appointed at Grade or Grade VI level and is seeking retrospective payment to apply.

The Employer is a health service provider who employs the Worker in an acute Hospital setting.  The Employer submitted that when the project was fully implemented the allowance ceased and that in these circumstances the Worker did not meet the terms laid down in Circular 17/2013 for the regularisation of posts.  The Employer submitted that the only avenue available to the Worker was to have her job reviewed under the agreed national job evaluation scheme. 

The Worker submitted that she is employed with the Employer as a Clerical Officer (Grade III) for the past 33 years. She submitted that due to the breadth of her experience she was seconded by the Employer in May 2005 to work within the Systems Department, to assist with the implementation of a new patient management system.  The Worker submitted that she received an Acting Grade V allowance for this role from 1st May 2005 to 30th April 2008 and that at that time (end of April 2008) the acting allowance was ceased, even though she continued to perform the main duties associated with the seconded role.  The Worker further submitted that her counterparts, employed by the Employer in another hospital within the area are paid at Grade V and Grade VI levels for work associated with the same project. She also outlined that she had raised the matter of the cessation of the allowance and the pay rate applying to her counterparts with the Employer, but to no avail. She submitted that in the circumstances she was left with no option but to apply to have her post evaluated under the national Job Evaluation Scheme (JES) and that she submitted her application in December 2018.

In her submission, the Worker outlined that she had raised a formal grievance with the Employer on 19th June 2020 and that she outlined the above issues as part of her grievance.  A meeting under the Grievance Procedure was convened on 30th July 2020, the outcome of which was that the Manager hearing the grievance concluded that the JES was the appropriate route to address the matter.  The Worker submitted that the Manager did not consider, in detail her complaint relating to the withdrawal of the allowance, the fact that she continued to do the work associated with that allowance and that the appropriate rate for the work had already been established by the Employer when they remunerated it at Garde V salary for 3 years.

In her submission, the Worker outlined that she appealed the outcome of the grievance hearing on 17th August 2020 to the Hospital General Manager. She confirmed that a Stage 2 hearing took place on 23rd September, during which the General Manager undertook to carry out a role comparison with other roles referred to in the grievance within a few weeks and to revert to the Worker.  The Worker submitted that despite repeated requests to the General Manager she never received an outcome to her Stage 2 hearing.  She further submitted that she sought details of whom she could address her Stage 3 grievance but that she never received a reply.

In her submission the Worker drew attention to a previous case , ADJ 00018561, where the Adjudication Officer stated “accepting that job evaluation was proposed as a sincere effort to assist the employee, job evaluation is a measure to assess the grade of a post where this may be in doubt” and submitted that as the Worker’s counterparts are remunerated at a minimum of Grade V level, and as this was the rate originally paid to the Worker  there is little doubt that the appropriate rate that should apply to the Worker is a minimum of Grade V level.  In these circumstances the Worker contends that job evaluation is not necessary to establish the appropriate rate.

The Worker also set out 2 further cases of relevance i.e. ADJ 0002012 and ADJ 00027118.  In the former case, where the Worker continued to act in a role for over 15 years, the Adjudication Officer found that there was justification for the Worker to be regularised at the higher grade.  In the latter case, where the Worker had continued carrying out the duties of a higher level without the payment of an allowance, the Adjudication Officer found that the matter should be remedied by the employer through a retrospective payment.

The Complaint summarised her case as follows:

·       The Worker was paid at Acting Grade V level for the work associated with the systems project from 1st May 2005 to 30th April 2008

·       The Worker’s counterparts are paid at Grade V and Grade VI level

·       The Worker never reverted to her Clerical Officer role but was, in fact, given additional responsibilities over and above those she had carried out during the period when she was paid at Grade V level.

·       The Worker was directed down the job evaluation route by the Employer, but having made her application in December 2018, she has yet to have a meeting under the scheme to review her post.

·       Had the Worker’s Acting Allowance continued she would have been regularised at Grade V level under the terms of Circular 17/2013.

In her submission the Worker outlined that, as a result of the foregoing, the Worker had suffered significant financial loss, loss of annual leave entitlement and loss of pension benefit.  The Complainant provided copies of the following documents to support her position:

·       Letter of 19th June re outcome of Stage 1 grievance

·       Letter of 17th August containing appeal of Stage 1 outcome

·       Circular 17/2013

·       Adjudication decisions ADJ 00018561, ADJ 00027118 and ADJ 0002012

·       Correspondence of 19th October from line manager confirming that the Worker continued to carry out the duties after April 2008

The Employer submitted that the Worker was employed as a Clerical Officer since 16th April 1988 and that in 2008 she was seconded to work on a project, implementing a new patient system.  The Employer submitted that the project lasted for approximately 3 years, that the Worker was paid at Acting Grade V level for the duration of the project and that the allowance paid was removed once the project finished.

In their submission, the Employer contended that, at the time, the Worker contested that her workload had stayed the same, despite the fact that the project had officially ended.  The Employer submitted that the Worker continued to provide training on the system for staff who were required to use the system and that for this, she was paid a training allowance.  The Employer noted, in their submission, that the Worker had argued that her counterparts in other areas had continued to receive remuneration at Grade V level after the project ended.

The Employer submitted that in light of the concerns raised by the Worker she was advised to utilise the Employer’s Grievance Procedure. The Employer submission confirmed that the Worker had lodged a grievance and that this Stage 1 grievance was heard in July 2020.  The Employer confirmed that the outcome of that hearing was that the grievance was not upheld but that the Worker was offered a right of appeal, which she exercised.  The Employer confirmed that the Stage 2 hearing was held in September 2020 and that it appeared that no outcome was issued in relation to that hearing.

The Employer summarised their position as follows:

·       That the Worker was seconded to a project in 2005 for a period of 3 years up to 2008

·       That the Worker received an acting Grade V for this period until such time as the project concluded

·       That when the project finished it was logical that the acting post would finish too

·       That what occurred was in line with HSE policy that you will only be paid at a higher level if a contract exists for a higher level

·       That as the contract had finished so the Worker would revert to her substantive role

·       The Worker’s claim that her counterparts remained in a Grade V contract is void because they were on a Garde V contract before the project commenced

The Employer submitted that, in the interim period since 2008 a collective agreement was reached on a Job Evaluation Scheme and that this was designed as a process for staff to utilise when they felt they were not being appropriately paid for the job they were doing.  The Employer further submitted that this process remains active and is the only process available to employees to have their role and their salary reviewed.  In all the above circumstances, the Employer confirmed they were satisfied that the Worker was appropriately paid for her time on the project and that it was appropriate that the acting pay be removed when the project ceased. 

I have carefully considered the extensive written and oral submissions made by the parties to this matter and the supporting documentation provided.

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act and concerns a claim by the Worker that she should be regularised at Grade V level and that there should be a retrospective element to the implementation of the grade.

The Employer contends that the only mechanism available to review the grading of the Worker is the nationally agreed Job Evaluation Scheme (JES).  The Employer further contends that the Worker was paid at Acting Grade V level for the duration of a systems implementation project, that the allowance ceased when the project ceased and that as the Worker’s contract ended so she would return to her substantive role.  In these circumstances, the Employer contends that her allowance was ended appropriately and therefore the terms of Circular 17/2013 were not applicable to the Worker.

I note that the Worker confirmed at hearing that she never returned to her substantive Grade III role in the Admissions Department and I note the correspondence of 19th October 2021 from her line manager who confirmed that she had continued to work in the role initially assigned to her in 2005.  I note the content of that letter where the manager stated that he was a clinical analyst on the project from 2003 to 2010 and from 2012 to March 2021 he was the manager of the department. I note that he further stated that “during those years” the Workers “primary role was working as a System Administrator carry out the tasks” on a list which was appended to the letter.  I note that the Employers’ representative accepted that the Worker had not returned to her substantive duties; that it was only her salary level that had been reversed. 

I note also that the Respondent representative confirmed at hearing that there was no correspondence on the Workers’ employee file in relation to either the commencement or the cessation of the allowance. I note that when the Employer first established the role it was determined that the appropriate grade for the role was that of Grade V and that this grading was consistent with counterparts in other areas.

It is clear that the Grade V allowance should not have been ceased by the Employer, as while the project had “gone live” the Worker did not return to her substantive Grade III role in Admissions but rather, she continued to work as a systems administrator.  I therefore find that her allowance should have continued to be paid.

It is clear that Circular 17/2013 provides that where an employee was acting in a post “on a continuous basis for at least 2 years at 31st December 2012”, the employee is to be regularised in the post.  Based on the terms of the circular and my finding that the Worker should have remained in receipt of an Acting Grade V allowance I find that the Worker should have been regularised at Grade V level in accordance with the terms of Circular 17/2013.

In considering the question of a retrospective implementation to this grading I was struck by the fact that the Worker had sought to address this matter for many years, without any recognition of the unfairness of the situation or any real engagement on the part of the Employer.  I was also struck by the failure of the Employer to complete the Stage 2 grievance process, the failure to respond to her repeated correspondence seeking an update nor even to respond to queries from the Worker as to how she could move on to a stage 3 grievance.  I was also dismayed to learn that the Worker had made an application to the JES in December 2018 but that she had not received any contact in relation to her application by the date of the hearing, some 3 years later.   I acknowledge that the Workers’ representative advised the Workplace Relations approximately a week after the hearing that the Worker had just been advised that the JES had determined that her job should be graded at Garde V level.  This decision was made without ever interviewing the Worker or her manger.

It is clear that the Worker recognised that this matter needed to be addressed back in 2008, that she made strenuous efforts to address it at the time, that the Employer’s approach was one of avoidance and evasion and that the Worker, through no fault of her own has been significantly disadvantaged by the failure to address this matter. Having regard to the foregoing, and in the specific circumstances of this case I find that the Worker is entitled to have her Acting Grade V allowance restored with effect from the date of its’ termination in 2008 up until the regularisation of the Worker in accordance with the terms of Circular 17/2013.

I recommend that the Worker is entitled to have her Acting Grade V allowance re-instated from the date of it’s termination in 2008 up to the date of her regularisation in accordance with the terms of Circular 17/2013.  For the avoidance of doubt, I also recommend that the Workers appointment at Grade V level should take effect from the October 2013 and that she should receive all outstanding payments, increments and annual leave due to her in the intervening years.

Finally, I recommend that the Employer open discussions with relevant parties to the collective agreement regarding the JES.  The focus of those discussions should be to ensure that evaluations are conducted in a timely manner and that no Worker is waiting longer than 6 months to have their post reviewed.