Employee

Employer

Anonymised Parties

A Human Resources Manager

A Provider of Health Services

Representatives

Ryan McKinney, Fórsa

 Represented by Management

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00035087-001

06/03/2020

Ms AB commenced working for the employer in 1972 and when she retired in December 2019, she had completed 47 years of service.  In the years leading up to her retirement, she worked in the HR department in a particular regional area and she was regarded as a valued member of the HR team.  After her normal retirement date in December 2018, she returned to her job on a temporary contract and she worked on a half-time basis until December 2019. 

In October 2013, a process was agreed to regularise acting up arrangements that had been in place across the organisation for two years or more.  This resulted in Ms AB being placed on the Grade VIII pay scale with effect from October 1st 2013.  The regularisation process applied to over 2,000 employees and each person moved to their new grade at the nearest financial point not below their old grade. 

When she was due to retire in December 2018, Ms AB was on point 6 of the Grade VIII scale.  In April that year, in view of what was described as her “assiduous performance,” the Head of HR, who was  her manager, recommended that she be placed at the maximum of the Grade VIII scale (point 7) with effect from April 1st 2015.  This proposal was not approved before Ms AB retired.  This dispute is about the failure of the employer to follow through with the recommendation of the head of HR regarding the fast-tracking of Ms AB’s salary to the maximum point of the Grade VIII scale effective from April 2015.

Due to the “marriage bar,” Ms AB left her job in 1981 after she had been married for two years.  She received a payment known then as a “marriage gratuity.”  She said that she went back to her job after one week.  Her service prior to her departure was not recognised for pension purposes and in 2018, so that she could retire on her full pension, Ms AB reimbursed the employer with a sum of €26,663, representing the amount that she received as her marriage gratuity plus interest.   It is Ms AB’s case that she paid back the marriage gratuity because she was confident that the decision of the head of HR to put her on the maximum of the Grade VIII from April 2015 scale would be implemented.

In mid-2018, with Ms AB’s retirement approaching, the recommendation of the Head of HR that she be placed on the top point of the Grade VIII scale had not been implemented.  Fórsa made representations to the Chief Officer to have the matter resolved.  In support of her case, the union referred to Ms AB’s superior performance in relation to the following:

§    Implementation of the change management process under the Public Service Agreements;

§    Amalgamation, expansion and stream-lining of the HR service from provision of a service to one community service area to several areas;

§    Setting up a recruitment section at short notice and with limited resources;

§    Covering the office manager role in addition to her own role in several areas up until late in 2018;

§    Taking on the role of data controller, with responsibility for retrospective Garda vetting of relevant employees;

§    Compliance with the responsibilities around HIQA requirements under the National Vetting Bureau Act.

Fórsa also highlighted how Ms AB was in a dual capacity role for significant periods before and after her role was regularised, with the result that she often worked 50 hours a week and on-call during her holidays and at weekends.  The union referred to a comparator who was paid at the level of a General Manager, without having responsibility for industrial relations issues and evidence that the previous Chief Officer had recognised assiduous performance in the past.

Mr McKinney described the discussions with the Chief Officer as “inconclusive” and the problem was referred to the Corporate Employee Relations (ER) Department as a stage 3 grievance.  Contrary to the grievance procedure, no outcome resulted from a meeting with a manager in the Corporate ER Department on April 30th 2019 and Fórsa submitted the dispute to the conciliation service of the WRC.  A hearing which took place on October 4th 2019 was adjourned to give the employer time to develop a proposal to settle the matter.  The proposal fell short of the original recommendation to place Ms AB at the maximum point of the Grade VIII scale with effect from April 1st 2015 and her grievance was submitted again to the WRC.

The union’s case is that a precedent has been set by the employer in respect of performance reviews and Ms AB is seeking equal treatment with others.  Mr McKinney argued that Ms AB’s right to fairness has been breached and that a legitimate expectation has been created for her to be treated the same as others who have had their performance rewarded.  While recognising that there is a risk inherent in following the precedents already established, he asked that I recommend that Ms AB is placed on the maximum point of the Grade VIII Officer scale with effect from April 1st 2015. 

At the hearing, Ms AB said that in 2013, when her position was regularised, her job was incorrectly graded as a Grade VIII Officer.  She said that her responsibilities were closer to that of a General Manager and that, over the years, she had worked very long hours and at weekends and evenings.  Ms AB said that a person in a similar role to her was paid at the level of a General Manager.

The employer’s case is that in early 2018, “a mistaken and erroneous view” resulted in Ms AB’s manager recommending that she was placed on the top point of the Grade VIII scale with effect from April 2015.  Later that year, the Chief Officer rejected the proposal and it is the employer’s case that this was a correct decision.  The offer made to Ms AB in 2018 “was based on an entirely incorrect premise” to reward performance by fast-tracking an individual up the incremental scale.  The grading system is based on a single increment being awarded each year until a person reaches the top point, unless there is some compelling reason for not paying an incremental increase.

When he recommended that the employee was placed on the top point of the Grade VIII scale, it appears that the Head of HR relied on a clause in the Public Service Stability Agreement 2010 – 2014 which provided that,

“There will be significantly improved performance management across all Public Service areas, with promotion and incremental progression linked in all cases to performance.”

This clause is intended to mean that, in the context of the financial constraints arising from the financial crisis, normal incremental progression is subject to satisfactory performance.

It is the employer’s case that Ms AB was paid the correct rate of pay for her job and that it reflected the responsibilities associated with her Grade VIII role.  Their view is that she was adequately paid and that any concession of this claim would set a dangerous precedent.  Across the service, there are around 2,000 staff at Grade VIII and above.  In the area where Ms AB worked, there are 85 employees at Grade VIII and above in the administrative stream, none of whom have been given preferential treatment with regard to incremental progression.  If this claim was conceded, it is likely that others would pursue individual claims.

The employer’s representative argued that concession of this claim would be in stark contract to the immense flexibilities shown by thousands of employees who have worked long hours over many months under difficult conditions due to the Covid 19 pandemic.  No employee has received additional pay or faster incremental progression, and they have received no time back in respect of how they responded to the challenges of the pandemic. 

Following the meeting in the WRC in October 2019, the employer wrote to the union with a settlement proposal.  Ms AB rejected this proposal and the employer’s position now is that it is no longer on the table.

It is the employer’s case that the offer to place Ms AB at the top point of the Grade VIII scale, while made in good faith, was based on an incorrect premise.  Ms AB was paid the correct rate of pay for her job.  Any departure from the regular incremental progression would be problematic from an industrial relations perspective, as it would de-stabilise the good working relationships with other similar grades in the region.  There is also a concern that a concession of this claim would lead to knock-on claims across the service and in other publicly-funded agencies, at huge potential cost.  For all of these reasons, the employer asked me not to recommend in favour of Ms AB’s case.

While not directly stated in Fórsa’s submission, the genesis of this grievance appears to be that Ms AB was regularised in a Grade VIII role in October 2013, when it is her view that she should have been established in a General Manager position.  She is aggrieved that a colleague doing a job which she claims was similar to hers, but with less responsibilities, was graded as a General Manager in 2015.  She also claims that a colleague was fast-tracked to the fifth point of the Grade VIII scale in 2016.

It is apparent that Ms AB was an excellent employee and that she contributed greatly to the efficient running of the HR section in her area.  In view of this, and probably in recognition of her disappointment that she was not regularised at the level of a General Manager, the Head of HR recommended that, retrospective to April 2015, she should be placed on the top point of the Grade VIII scale.  When it came to implementation of this recommendation, Ms AB was informed that the employer would not follow through and that it was a mistake to recommend it.

I was impressed at the hearing by the high regard that the employer has for Ms AB.  I was also impressed by the frank honesty of the Head of HR when he conceded that his recommendation to fast-track her increments was a mistake.  It is my view that no advantage should result from this mistake, which was based on his good intention for Ms AB.

Having considered this grievance, and having listened to the positions of both sides, it seems to me that, once it was recognised and acknowledged that Ms AB’s manager made a mistake in recommending the retrospective fast-tracking of her salary to the top point of the Grade VIII scale, that should have been the end of the matter.  In hindsight, some enquiries by the Head of HR about the reasonableness and the possibility of achieving this concession would have provided the answer at the time.  Leaving that aside, it is my view that it would be unreasonable and unfair to place Ms AB on the top point of the scale when she has not completed the service required to be paid at that level.  I have based this finding on the following related factors:

It is apparent that Ms AB is aggrieved because her job was regularised as a Grade VIII Officer and not as a General Manager.  At the hearing of this complaint, she said that, up to the date of her retirement no suitable vacancy arose for a General Manager that she could apply for.  This is a feature of the hierarchical structure of every organisation; there is a limit on the number of jobs at senior roles.  At the end of a productive career, a highly competent employee may compare themselves favourably with the performance of a person in a more senior role.  It might be reasonable to feel under-valued from a financial perspective, but disappointment, and even exemplary performance is not the basis of the pay policy in the employer’s organisation.

I accept that Ms AB was able to point to a departure from the standard pay policy in 2016.  She also referred to the appointment of a colleague to a General Manager role in 2015, although it is apparent that that person was a temporary General Manager from 2011.  It is my view that these two exceptions should remain as exceptions.  Ms AB was on the correct rate of pay; no unfairness arises from this and the anomalies are not grounds for a departure from the agreed pay policy.

Ms AB said that she repaid the marriage gratuity because she was confident that her salary would be increased retrospectively before she retired.  I find this difficult to accept because (barring early death) the advantage of including the years of service from 1972 to 1981 for pension purposes outweighs the cost of the repayment.  It is my view that, regardless of whether she was placed on the top point of the Grade VIII scale, it was in Ms AB’s  interest to repay the gratuity.

The salary for the job that Ms AB did before she retired was fair and appropriate to the work that she carried out.  Performance-related pay is not a feature of Ms AB’s terms and conditions of employment.  She had the advantage of other benefits; she was in secure, reasonably-paid employment for 47 years, she was never at risk of redundancy and she retired on a guaranteed pension and a lump sum.  Following her normal retirement date, she was offered a part-time contract.  Her willingness to continue working indicates to me that she enjoyed her job; an enviable predicament after 47 years.    

In an organisation employing many thousands of people, funded by tax-payers, it is essential to have in place a transparent and robust system of pay scales.  Employees and their unions must have confidence that the pay policy is consistently applied.  For all of the reasons set out here, it is my view that the employer’s early rejection of the pay proposal in favour of Ms AB was correct.

I recommend that the employer takes no further action with regard to this dispute.

Grievance, pay scale