Complainant

Respondent

Anonymised Parties

A Health Service Worker

A Health Service Provider

Representatives

SIPTU

 HR Manager

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-00040562-001

23/10/2020

The worker is an employee of the respondent and works at in Learning Disability Day Services centre. She is presently paid as a Workshop Instructor (craft rate plus 12.5pc), but has been carrying out the role of Person in Charge or Manager (for which the established rate for the job is craft rate plus 25pc. She lodged a grievance with the employer but it was not processed to completion.

The worker is an employee of the respondent and works at in Learning Disability Day Services centre. She is presently paid as a Workshop Instructor (craft rate plus 12.5pc), but has been carrying out the role of Person in Charge or Manager for which the established rate for the job is craft rate plus 25pc.

Following a meeting at Stage 1 of the grievance procedure held on 6 November 2019,   the Respondent’s Service Manager confirmed on 2 March 2020 that 'all of the necessary paperwork has been completed in respect of your position' and stated that she hoped 'to have a fuller update for you by the end of the week as to approval status' . No progress having been made, on 8 June 2020 the worker sought to have the matter heard in Stage 2 of the grievance procedure.   However, no meeting was convened. On 7 September 2020, the worker’s union representative asked for the matter to be heard in Stage 3 of the grievance procedure.  However, no meeting was convened.

The matter was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969, this being Stage 4 of the grievance procedure.

The Labour Court has consistently taken the position that the existence of a collective agreement precluding cost-increasing claims during its life should not be a bar to payment of the appropriate rate for the job (see eg HSE West & A Worker AD1242 (May 2012)). It is acknowledged that administration in the respondent has been hampered in recent months by the Covid-19 public health emergency. However, it must also be acknowledged that the worker has continued to carry out important duties in respect of vulnerable people during the emergency in respect of which she has not been appropriately paid. It was not acceptable for the implementation of payment of the correct rate of pay to be delayed or for her attempts to resolve the matter to be ignored. She has attempted to use the grievance procedure in good faith to resolve the matter and has shown considerable patience. The worker is seeking a recommendation that she be paid the appropriate rate of pay for the role of Person in Charge or Manager with effect from 6 May 2019.

The assertion by the worker is that she is a Person in Charge (PIC).  The employer’s understanding is different. PIC’s are Nurse Managers and the rate of pay for a PIC is a nursing rate.

The rate of pay claimed by the worker of Craftsman plus 25% derives from a Labour Court award LCR14565 which recommended;

The Court recommends that the Instructors involved in skill base only (level 1) be paid the craft rate + 12.50% and those involved in vocational training (level 2) be paid craft rate + 25%.

The decision dealt with who should get this award and recommended that the recipient must be involved in vocational training, which the worker in this instance is not.  Therefore, this is not an appropriate rate for the worker in this dispute.

The employer’s grievance procedure precludes dealing with rates of pay which must be dealt with collectively.

Section 13(2) of the Industrial Relations Act 1969 defines the power of an Adjudicator in relation to recommending on a dispute as follows;

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner

The worker is arguing that the rate of pay for the position is established. The allowance sought has its origins in the Labour Court decision LCR14565 which specified the nature of the grades to whom the allowance should apply and I cannot extend the scope of this agreement to grades not intended to be comprehended.

There has been considerable delay by the employer in processing the grievance and not all of the delay is explained by the pandemic.  In order for a grievance procedure to fulfil its purpose the employer must make a reasonable effort to resolve the grievance ie. to bring it to a conclusion within a reasonable time frame.  This did not happen in this instance.  In addition, points relied upon by the employer at the hearing regarding the applicability of certain allowances to the worker were not put to the worker in advance of the hearing. This is a further deficiency in the manner in which the employer implemented the grievance procedure.

The employer acknowledges that this is a somewhat unique situation and therefore I consider that it is not likely to be the subject of a collective agreement and a unique solution should be found. The employer is clear on which allowances/rates should not be applied but is less clear on what the appropriate grade should be.  I note that the employer was unable to say at what level the previous incumbent of the position was paid at.  I therefore recommend that a process be put in place for an independent examination of the role of the complainant regarding, but not limited to, the skill, physical or mental requirements, responsibility and working conditions, and that this role be compared to the other roles in the respondent.  In the event of the recommendation emerging from this process being that the post be upgraded then worker should have the upgrading applied from 6th May 2019.  

1) I recommend that a process be put in place for an independent examination of the role of the worker regarding, but not limited to, the skill, physical or mental requirements, responsibility and working conditions , and that this role be compared to the other similar roles in the respondent.  In the event of the recommendation emerging from this process being that the post be upgraded then worker should have the upgrading applied from 6th May 2019.  

2) In light of the deficiencies in the implementation of the Grievance Procedure, I recommend that employer pay the worker €1000 in compensation.

Industrial Relations. Allowances. Deficiencies in the implementation of the Grievance Procedure.