Complainant

Respondent

Anonymised Parties

Child Social Care Leader

Child Welfare Agency

Representatives

Lisa Connell Forsa Trade Union

none 

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-00035009-001

04/03/2020

The Employee works in location A where she has been employed since 2007. This is a community respite centre for children. The Employee is currently employed as a ‘Social Care Leader with Key Management Responsibility’ (hereafter referred to as SCL). She was promoted into this role in 2014 from her previous role of ‘Social Care Leader’. The Employee deputises for the Manager and carries out the role of a Deputy Social Care Manager (hereafter referred to as Deputy Manager) which is a higher grade. The Employee submits that she fulfils all the functions of a Deputy Manager and should be regraded to this position. She claims that location A is an anomaly in that every other similar location within the Employer’s organisation has a Deputy Manager position. The Employer rejects the claim because it submits that it has no mechanism for re-grading claims and furthermore that it is a cost increasing claim which is prohibited under the current Public Service pay agreement (Building Momentum).

in 2017, the role of SCL was replaced nationally by a Deputy Manager post across the Employer’s children’s residential services. A national panel was established which was open to internal applicants to apply for these posts. The Employee applied for this position. She was successful in her application and was placed on a national panel. The Employee was offered a number of Deputy Manager posts regionally, however, the post for location A has not yet been replaced in line with all other posts nationally.

All the Employer’s residential units have replaced the SCL posts with Deputy Managers. Location A operates under regional governance structures as opposed to national structures and there are two respite services similar to location A in their function where there is a Deputy Manager in the post. The Employee covers all the functions of the role of Deputy Manager as outlined by the Employer however her pay is still aligned with the grade of SCL.

The Employee submitted her grievance for re-categorisation of her role to that of Deputy Manager on 7 November 2019. She went through all stages of the procedure, but the Employer maintained its position that there was no mechanism for job evaluation within the organisation.

Employee’s Position:

The Employee is working to the job description as set out in the nationally defined job description for Deputy Manager and completes these duties and responsibilities daily in location A. This Position is not disputed by the Employer. Furthermore, where an internal inspection occurred in both 2018 and 2019 the inspector recommended that “a Deputy Manager would be established in (location A) in line with all other residential services.”. This was further reiterated in 2019 by another monitoring inspector who referred to this requirement in his inspection in 2019.

The Employee claims that if she was to vacate her role tomorrow her post would be replaced as a Deputy Manager, in line with the current national grading structure. The role of ‘SCL’ is now a defunct grade in the Employer organisation and there are no other examples of where the role exists. The Employee is now being financially disadvantaged and has been over the past number of years by not being re-categorised appropriately into a Deputy Manager Role. The Employee is also disadvantaged in regard to her annual leave being calculated as 26 leave days as opposed to 29 for a Deputy Manager.  The national job evaluation scheme is not currently a mechanism open to the Employee as it is not currently in place with the Employer - equally the scheme in its current format, does not have the capacity to evaluate social care grades.

The Employee submits that:

·       She should be regularised into the Deputy Manager post.

·       The Employee’s annual leave entitlement is reflected to that of a Deputy Manager to 29 days per year.

·       That retrospection on the above two matters would be applied as of 2017.

The role of Deputy Manager does not exist in Location A because this location is classified a 5- day respite community centre as distinct from a residential 7-day centre, although location A has operated recently as a 7-day respite centre. Location A was retained under the remit of the Service Director for Community based services whilst other Children’s Residential Units were transferred to National Management.

The campaign for recruitment of Deputy Managers did not apply to Location A as a community-based post so there was no intention to allot such a post to location A. it is understood that no employee in the SCL role was upgraded to Deputy Manager outside of this recruitment campaign nor did the Deputy Manager post replace the SCL but was instead an additional post agreed with the trade union to meet the requirements under the European Working Time Directive and Labour Court recommendation LCR20837.

The Employee was successful at interview for the Deputy Manager post and was placed on a panel. However, when the Employee was offered this post in other locations she refused and instead said she was awaiting to be appointed Deputy Manager at location A. 

The Employee utilised the internal grievance procedure, but she was informed that the Employer has no mechanism for job evaluation.

The Employer’s Position:

·       The Deputy Manager role is in Children’s Residential Units only and does not extend to community respite units. The SCL role is not aligned to that of Deputy Manager.

·        No mechanism exists for job evaluation or job regarding claims.

·       There are a number of re-grading claims in the pipeline and this claim could set a precedent for future claims by the trade union.

·       This is cost increasing claim and prohibited under the current pay agreement- ‘Building Momentum’.

It was significant in this case that the Employer did not dispute the position of the Employee that her role presently involved the duties and responsibilities of a Deputy Manager in all but pay and conditions. The Employer submitted however that location A came under a different management regime and was class as community based. However, the contrast as to what is residential and what was classed as ‘community based’ is somewhat blurred when it comes to Location A, where the Employee is based. The Employer accepts that weekend arrangements are continually being utilised in Location A thus making it in essence a 7-day residential facility. Furthermore, the Employee submitted cogent unrebutted evidence to suggest that Location A is the only unit with a residential operation where the post of Deputy Manager does not exist. This is an anomaly that arises not from the duties, role or otherwise of the Employee, but instead from a unique management structure for Location A within the Employer’s organisation. This situation creates a veritable limbo for the Employee.

The Employer cites the Public Service Agreement “Building Momentum” as a bar to a cost increasing claim. I do not consider this a cost increasing claim as understood within the common understanding of public sector pay agreements.  The Employer accepts that the post of Deputy Manager was created as requirement to comply with the European Working Time Directive during the currency of the last Public Sector Agreement, where there was a similar bar on cost increasing claims. The creation of the role of Deputy Manager was to ensure compliance for Residential Units. I am satisfied that such a role would have been created for location A but for the anomaly attributable to a different management structure. Furthermore, the Employee’s trade union submitted that cost increasing claims were conceded in recent times when anomalies or injustices were discovered.

Recommendation:

Having regard to the foregoing, it is clear to me that there is a fair and equitable requirement for a job evaluation to be conducted to establish whether the present role of the Employee equates to that of Deputy Social Care Manager. Such an evaluation, comparing the duties and responsibilities of the Employee with existing Deputy Social Care Managers within the Employer organisation, should be carried out by an agreed independent expert and completed within two months of receipt of this recommendation. If the evaluation should find that the Employee should be re-graded as a Deputy Social Care Manager, then the Employee should accordingly be re-graded and any retrospection on pay and holidays should be calculated from 1 January 2020.     

Having regard to the foregoing, it is clear to me that there is a fair and equitable requirement for a job evaluation to be conducted to establish whether the present role of the Employee equates to that of Deputy Social Care Manager. Such an evaluation, comparing the duties and responsibilities of the Employee with existing Deputy Social Care Managers within the Employer organisation, should be carried out by an agreed independent expert and completed within two months of receipt of this recommendation. If the evaluation should find that the Employee’s duties and responsibilities equates to that of Deputy Social Care Manager, then the Employee should accordingly be re-graded to that position and any retrospection on pay, holidays and other terms of employment should be calculated from 1 January 2020.

This recommendation is strictly confined to the anomalous circumstances in this case and should not be cited as a precedent for any other claim.       

Section 13 of the Industrial Relations Act 1969, re-grading