Complainant

Respondent

Anonymised Parties

Clerical Officer

Public Transport Provider

Representatives

Marie O'Connor SIPTU

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-00040818-001

05/11/2020

The Employee works in a booking office location where she is graded as a CO3 grade. She is seeking to be upgraded to the CO2 grade as she claims that she carries out similar work in every respect to a colleague who is on the CO2 grade. She applied to be re-graded on two occasions but was unsuccessful.  She appealed both decisions but the decision of the Employer not to regrade was not altered. She asserts that the she was treated unfairly in that she was not given a report, by the employer, as to why she didn’t make the grade other than a statement that she was not successful. The Employer does not dispute the fact that the Employee carried out similar work to her colleague, other than her colleague was a recipient of the higher grade as a result of restructuring in 2007 and that the grade is retained by her colleague on a ‘red circling-personal to holder basis’. The Employer further submits that the Employee has gone through the agreed mechanism for regrading and on two occasions has been advised that she is appropriately graded for the work she undertakes. The Employer refutes the notion of any unfairness inherent within the regrading process.   

The Employee applied to be regraded to a CO2 from her grade of CO3 on two occasions. This was prompted by the belief that she carried out the same duties in every respect with her colleague in the booking office who has the higher CO2 grade. She was unsuccessful in her application. On the most recent occasion she was informed that her application for regrading was unsuccessful but that she could appeal the decision to the Director of HR. Her appeal was unsuccessful.

She subsequently took a grievance through different levels of management which ultimately focussed on two issues:

1.       That she was not issued with a job description for the CO3 grade

2.       That she did not receive a formal report on her application following the regarding process.

She submits that she did not receive a specific job description for her current role as a CO3 grade, nor did she receive any reasons why she did not qualify for the CO2 grade, other than a statement from the Employer that she was unsuccessful.

The Employee submits that that she has not been provided with any understanding of why she should be paid less than her colleague, either in the grading process, and appeal, or in the internal grievance procedure that followed.

The Employee quoted the Labour Court in Medite Europe Limited Ltd v A Worker AD1483 , a case concerning a promotion competition, where the Court stated “…(The Court) has consistently held, in cases such as this, that its role is not to substitute its views on the respective merits of the candidates…it is only where there is clear unfairness in the selection process or manifest irrationality in the result that the Court could interfere with the outcome of such a process.”  The Employee submits that the failure to give reasons for her not being successful as breach of the principle of natural justice.

The Employer has an established process that applies for reviewing grades, following guidelines prepared by the Irish Productivity Centre Consultancy in 1999. However, in 2010 the company commenced negotiations with the representative Trade Unions in relation to the unprecedented financial crisis. One of the items discussed was the current applications for regradings. The Company and Trade Unions agreed as part of Cost Containment that there would be a freeze on all regrading applications until January 2015. In 2012 there were 52 individual applications, including this Employee.  A series of engagements were held with the representative Trade Unions in 2015/2016 to discuss the 52 applications and a number of employees who were competent to assess the applications were tasked with evaluating the roles. Each of those competent staff were tasked with assessing several cases and all the applications were completed within a specified timeframe. Of the 52 applications 22 were successful, 10 were unsuccessful and 20 of the applicants had either not engaged with the process, exited the company, been promoted or had withdrawn from the process. The Employee was unsuccessful in her claim for regrading and was deemed appropriately graded in her current role.

In 2017 the Employee appealed her regrading decision and the Director of Human Resources was appointed to review her application. The appeal was done on a de novo basis with the Employee submitting a new form with her application which listed all the functions and tasks she carried out in her role. The Director found that the Employee was appropriately graded in her current role and no regrade was warranted.

 In April 2020 the employee raised a grievance with her local manager and ultimately proceeded through the different stages of the grievance procedure. The grievance addressed by the Employer, as understood by both parties, was that 

1.        That the Employee was not issued with a Job Description for the CO3 grade.

2.        That the Employee was not issued a formal report by the Director of HR following the regrading process.

It is the Employer’s position that the employee received a job description for her grade. In regard to item 2, the Employer confirmed that the collectively agreed policy is not to issue a formal report to applicants, but instead employ the agreed process in a regrading, which is to write to the applicant informing them of the result of the regrading process. The Employee was informed by email in relation to her appeal in 2017 and the decision subsequently confirmed by letter in 2019.

 Any concession of this claim would lead to a precedent that the Company could not support and be severely detrimental to the internally agreed regrading process which has rightly and fairly found in favour of staff when there was proper merit in their case.

It was made clear to both parties that I would follow the Labour Court’s direction in Medite Europe Ltd. and not substitute my view on the merits or otherwise of the Employee’s claim for regrading. Therefore, I do not believe it is appropriate for me to determine whether the Employee fulfils the requirements for the grade in question. I do not possess the criteria nor the in-house knowledge necessary to carry out that task. What does need to be investigated is to whether the Employee concerned was treated fairly in the way her application for regrading and her subsequent appeal of the decision fell within the bounds of what a reasonable and fair employer would do.

 The Employer made a strong case that there are competent and experienced people who decide within the company as whether an applicant for regrading fulfils the criteria for a particular grade. The Employer further made the point that if people were told the reasons for being unsuccessful then the system would clog up endlessly with appeals. I can understand the concerns of the Employer on this point and I don’t doubt the proficiencies of personnel or the efficiencies of the system, but such considerations cannot come at a cost of patent unfairness to any single employee.  

What does strike me as surprising is the complete lack of transparency and accountability in the promotion system as the Employee experienced it.  She was not given detailed criteria with regard to the tasks and responsibilities of the CO2.  She was not given any feedback on why she did not qualify nor were further details forthcoming other than a communication that she was unsuccessful and that she could appeal the decision. The obvious question that arises is how the Employee can appeal a decision when she has no information upon which she could make such an appeal.

Any reasonable employer, who has a stratified grading system, has in place a fully transparent promotional system within the grades, that can be challenged, when needs be, so as to ensure confidence, trust and fairness amongst those who use it.   Notwithstanding the obvious transgression of the established right to access to personal data by the Employee, I find that the insistence of the Employer in maintaining secrecy around the regrading process, in this instance, gravely imperils the  notion that fairness was extended to the Employee in her application for regrading.  

I recommend:

1.       The Employer should immediately furnish the Employee with graded job descriptions and responsibilities of the CO2 and CO3 grades for comparative reasons.

2.       That the Employer should immediately furnish the Employee in writing with the full details of the criteria used in the assessment of the Employee in her last application for the CO2 grade

3.       That the employer should immediately furnish the Employee in writing with the full details of the reasons why she was unsuccessful in her last application, and her scoring in different fields where applicable.

4.       That after receipt of the information outlined at points 1, 2 and 3, that the Employer should allow the Employee to submit a de novo appeal based on the information received, if she so wishes, and that full details of any subsequent decision as outlined above would be communicated to her.     

 I recommend:

1.       The Employer should immediately furnish the Employee with graded job descriptions and responsibilities of the CO2 and CO3 grades for comparative reasons.

2.       That the Employer should immediately furnish the Employee in writing with the full details of the criteria used in the assessment of the Employee in her last application for the CO2 grade

3.       That the employer should immediately furnish the Employee in writing with the full details of the reasons why she was unsuccessful in her last application, and her scoring in different fields where applicable.

4.       That after receipt of the information outlined at points 1, 2 and 3, that the Employer should allow the Employee to submit a de novo appeal based on the information received, if she so wishes, and that full details of any subsequent decision as outlined above would be communicated to her.    

Industrial Relations Act 1969, Regrading claim,