Complainant

Respondent

Anonymised Parties

Agricultural Development Officer – Education Officer

A Statutory Body

Representatives

Denis Keane, Fórsa Trade Union

 Employee relations manager

Act

Dispute Reference No.

Date of Receipt

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

CA-00025291-001

25/01/2019

This dispute arises from a decision of the Respondent to treat the Complainant as a new entrant when she commenced work with them in December 2014. Her complaint is that the Respondent refused to the assimilate her salary to match that to her previous public service pay point. In doing so they refused to apply paragraph 9(ii) of the Department of Finance Circular (dated 21 December 2010, hereafter referred to as the Circular.) She contends that the Respondent should have taken account of her previous public service salary when deciding her starting grade and salary, when she started working for the Respondent in December 2014. In essence, her complaint is that the Respondent were incorrect in treating her (in both grade and salary) as a new entrant.

The Complainant commenced work with the Respondent as an Agricultural Development Officer, acting as Temporary Education Officer (TEO) on 1 December 2014. In September 2015 her appointment became permanent. Her complaint is that in December 2014, she commenced work on a grade 1 (new entrant) basis and received a new entrant salary which was at the start of the minimum salary scale for TEOs and that no account was made for her previous public service, doing analogous work, or the fact that part of her previous salary had included a, non-performance related, Masters’ allowance.

The Complainant submitted as follows:

She worked in a variety of teaching posts and prior to her employment commencement with the Respondent, most recently with an Educational Training Board (ETB).  She applied for and was successful in obtaining a post as a Temporary Education Officer with the Respondent, a position that she took up on 1 December 2014 and which became permanent in September 2015.

She accepts that the employment contract ( signed with in December 2014 ) states that her salary will commence at the minimum grade, however because she previously worked, (in what she contends is analogous work) within the public service as a teacher, in accordance with a Department of Finance guidelines (dated 21 December 2010) and specifically paragraph 9 (i) of the Circular and as supported by a subsequent Department of Public Expenditure and Reform memorandum (operative from 30 November 2015) she believed that she was, a person who has “been in permanent or temporary employment in the public service on or before the 31 December 2010” who “will not generally be regarded as (a) new entrant/s” but rather should, “be assigned to an appropriate pre-1 January 2011 scale in such a new post/position.” As such she contends that at the time she was appointed the appointment should have been made at her current (Point 3) on the teacher scale.

She further contends that an annual allowance of €5496 (entitled a Masters’ allowance) received in her ETB teaching position should also have been regarded as part of her previous salary which should have been incorporated or assimilated into the salary of her new position with the Respondent, however it was not.

She contends that taking into account the Masters’ allowance, she should have started on Grade 5 in the Respondent’s salary scale but rather was started at Grade 1/ new entrant (salary €31729).

She contends that the teaching work that she did with the ETB was analogous work in that it was teaching work at FETAC levels 5 and 6, it involved working with student groups and co-ordinating classes, preparation of exam material,  in-service training of teachers (part of which included verification of other teachers’ work) and insofar as the work that she does in her new position, involves additional responsibilities, for example in management of a sheep enterprise programme,  these are separate and distinct from her core teaching responsibilities.

The Complainant contends that the Respondent’s decision to deem her previous work as not analogous to her role, was incorrect and was an overly restrictive interpretation of the Circular, and one that was not envisaged when the Circular was issued.

Furthermore, the Respondent interpreted the Circular using additional criteria that are not within the Circular which demonstrates that a pre-determined and fixed approach to the issue was adopted by the Respondent from the outset. In her opinion the Respondent were never open to the possibility that the Complainant might have been entitled to what she was seeking. This made conducting her request to be challenging and this has negatively impacted upon her since 2015.

Furthermore, there were three other (male) employees of the Respondent who had held other posts before they took up positions with the Respondent and in all three cases, their previous work was taken into account when their grade and starting salary was determined, even though their previous positions were, to a much greater extent, not analogous to the teaching positions that they subsequently took up and currently hold.

In relation to the allowance that she received in her ETB post, she contended that since then the allowance (which was either a Masters’ allowance or a H.Dip. allowance, depending on the teacher’s qualification) was payable to all teacher employees. The allowance was regarded as a part of the ETB teaching salary and has since been incorporated into the ETB teaching salary, which proves that it was always considered to be part of the salary. The Complainant contends that the Masters’ allowance should have been included in the calculation of her salary to be assigned to her teaching position with the Respondent.

The Respondent has contested this complaint on the basis that the Complainant’s immediately previous teaching post (as a verifier) was not a public post and the public service which she did prior to 2010 was not analogous to her new position.

In order to be reckonable, the Complainant’s previous public service needed to have taken place within 6 months prior to the commencement of her new position (this point was withdrawn by the Respondent towards the end of the Adjudication process)

The Respondent contended that the Complainant’s previous work was not analogous to her current position. As “analogous work” was a pre-requisite for paragraph 9 (ii) of the Circular to apply, her previous salary was not relevant and it was correct for the Respondent to start her employment on the minimum scale.

In addition, the Respondent contends that, even if her previous work had been analogous (which they deny) the Masters’ allowance that she had enjoyed in her previous employment was an allowance, it was not part of her previous salary and it could not be taken into account to calculate her new salary because it had no equivalence in her current position.

I accept that this dispute is a live dispute between the parties and that no jurisdictional objection has been raised by the Respondent that there has been either a failure to utilise grievance procedures or other preliminary objection.  The Respondent’s position is that this issue has been determined by them and will not, in the absence of an adjudication recommendation, be reconsidered internally by them. Consequently, with the consent of the Respondent, I am satisfied that there is jurisdiction for the Adjudication to proceed and be determined.

The first matter to address is the Complainant’s allegation that she was discriminated against. She contends that the Respondent refusal to treat her previous public sector work as non-reckonable whereas the previous public sector work of three other employees of the Respondent, all of whom were male, was reckonable, is unfair and discriminatory.

It is important to state at the outset that this is not a discrimination complaint taken under the Employment Equality Acts 1998 nor is it a Payment of Wages 1991 Act complaint, even though both are referred to in the Complainant’s submission.

This is a complaint pursuant to the Industrial Relations 1969 Act. While allegations of discrimination, as raised, can be used to show an inequitable course of dealing by the Respondent, no finding of discrimination (or a breach of the Payment of Wages 1991 Act) may be made at this adjudication on foot of the complaint that has been brought.

The issue is confined to if, at the material time, the Complainant was entitled to have the terms and conditions of her previous post, reflected in the salary attaching to her new post.

This matter is governed by a Department of Finance Circular, signed by Mr. Brendan Duffy, the Assistant Secretary in the Department of Finance dated 21 December 2010 (the Circular.)

The Circular states that public servants who have been employed in the public service before December 2010 will in general not be treated as new entrants, as long as the public sector work that they have been engaged to do, is analogous to their previous public sector work.

Having not initially been accepted, it is now accepted by the Respondent that there is no six-month time limit for analogous work within the public sector. Indeed, the Circular specifically states at paragraph 9(i) that those who have been public servants “on or before 31 December 2010” will not generally be regarded as new entrants.  

I accept that this arose in circumstances where the Respondent initially received incorrect advice but as soon as the alternative advice became available (namely that the 6 months effected pension rights only) that the Respondent expressed their regret to the Complainant for the initial error and withdrew this point of their defence. Unfortunately for the Complainant this clarification was not obtained until late into the adjudication process.

There is no dispute however over the fact that criterion in paragraph 9 (ii) of the Circular is determinative. This states that in order to not be treated as a new entrant, the public service previously performed is required to be analogous to the new position. The Circular does not define what constitutes analogous work is. Paragraph 9 (ii) of the Circular provides some assistance, where it states that it must be to the “same grade /role as their previous public service employment.” Notably, the word “grade” is used as well as “role,” so it appears that analogous does not require the role to be the same as the previous role. Assistance in interpreting the word “analogous” is provided by a distinction made between temporary and permanent positions.  An example is then provided: If a substitute (i.e. temporary) teacher gains a new position as a substitute teacher in a different school then his/her new salary will not be as a new entrant but will reflect his/her previous service as a substitute teacher, however if a substitute teacher gains a new position as an assistant lecturer in an university, this would not be considered to be analogous work.

The Complainant gave evidence that her current (at the time she was appointed) and previous positions were both temporary, so in that respect the positions were analogous. The fact that her current post became permanent subsequently is not material, because the material time is when the position is appointed.

In the absence of a definition of analogous, the example provided in the Circular makes it somewhat difficult to interpret the word analogous because it implies that does in fact mean “same-ness” which is neither the ordinary meaning of the word analogous and such an interpretation is not consistent with it when the words “grade” as well as “role” are attached to it.

Analogous in its ordinary sense means “comparable” or “of a similar type.”

In terms of whether the two roles were of a similar type of role, the Complainant contends that her position in the ETB was a teaching job involving many, if not all of the features of her current position; both are positions teaching FETAC Level 5/6; both require her to teach and train students, both require her to verify teaching practices of others, in both she prepares and verifies exam material,  in both she provides in-teaching and exhibition training, in both she works with students and co-ordinates classes.

This evidence was countered by the Respondent. They contend that the work that was previously done by the Complainant was not a teaching post, whereas her current post is. They also say that the additional responsibilities of, for example, managing the sheep enterprise, is unlike anything that featured in her previous teaching role with the ETB. They essentially deny that because the positions are different in function and in responsibility, that the positions are not analogous.

The Complainant counters this by asking why then, in respect of one of her male colleagues, whose previous position (a research post) was deemed to be analogous to his new teaching post despite him having no teaching responsibilities at all in his previous role. If he was entitled to the benefit of the circular, her previous work was much closer in type or role to the ordinary meaning of analogous than his.

In respect of the comparison with the Complainant’s male counterpart I find that I am not in receipt of adequate evidence as to the previous and current positions that are held by this comparator, nor his terms and conditions.  Consequently, I am unable to assess whether his previous post was analogous to his current post. However even if I was provided with this evidence, because he received the benefit of the Circular, does not provide a basis upon which it follows that the Complainant should receive the benefit of the Circular. The test is whether or not the Complainant comes within the wording of the Circular, not whether there was unfairness in a colleague of the Complainant coming with the Circular and the Complainant did not. As unfair as this may feel to the Complainant, her entitlement is derived from the Circular, not from how her colleagues were or were not treated.

Therefore, this recommendation is made upon the evidence of the Complainant and the Respondent and the wording of the Circular as it applies to this Complainant and this Respondent.

Having considered; the wording of the Circular, the ordinary use of the words “analogous grade/role,” the evidence of the Complainant and the counter evidence of the Respondent, I find that the Respondent were incorrect to find that the work that was performed by the Complainant in her previous employment was not analogous to her current role. The position that she holds now is still a teaching post for a Level 5/6 FETAC course. The additional enterprise role is still part of her role to train the participants within the course. The course is different, so naturally the teaching involved is different, but it seems to me to be an artificial distinction to say that her teaching role within the ETB and the teaching officer role with the Respondent is sufficiently different to render it to be non-analogous. It is of similar grade or role to justify a finding that the work is analogous.

I also find that the words “on or before 31 December 2010” in paragraph 9 (i) of the Circular means that it is not a precondition of the Circular’s application that the previous public sector work needs to take place immediately prior to the take-up of the new post.

The matter then turns to the Masters’ allowance that was paid to all teachers and in respect of which the ETB now treats as salary – not an allowance (although when the Complainant moved jobs in 2014, the payment was still regarded and treated as an allowance and not salary.)

In many cases the payment of a bonus or an allowance, where it does not depend work performance, is considered to be part of a person’s salary. This has been upheld in unfair dismissal complaints where loss of an automatic allowance (i.e. one that is not conditional on any additional work or performance) has been included as part of a complainant’s loss of earnings.

However, it must also be accepted that the Complainant signed a contract within which she accepted a starting salary at the minimum point on the salary scale, which clearly would not permit her ETB salary (with or without the allowance) to be reflected in her new post. It also must be accepted that there is no agreement (collective or otherwise) in place which states that an allowance which was specific to a previous post should be treated as salary. 

On the balance of probabilities I find that paragraph 9 (i) of Department of Finance Circular dated 21 December 2010 applied to the Complainant, that the Complainant’s previous work was analogous and as a minimum her salary with the Respondent should have reflected her pre-January 2011 ETB salary (point 3 of the Teaching salary scale) and that she should not have started as a new entrant.

In terms of whether the Masters’ Allowance should have been included as part of the calculation of her new salary, this a difficult matter to determine and in coming to this recommendation I am concerned about two matters. Firstly, it is the role of an adjudicator in Industrial Relations adjudications to give effect to Circulars and agreements in place between the parties. It is not the role of an Adjudicator to imply terms into Circulars and agreements that do not exist. I have been critical of the Respondent for initially seeking to import into its interpretation of the Circular a 6 month pre-condition that is not expressed in the Circular. Similarly, there is no term within the Circular (or a related agreement) to permit an allowance or bonus that attached to one post to be treated as salary. Secondly, I am concerned not to interpret the Circular in a manner which might give rise to an argument being made in a subsequent Adjudications that allowances form part of  a salary.

I can appreciate why the Complainant regarded the allowance as part of her previous salary. It was given to all teachers and was not conditional on performance. However more so, I find the Respondent’s position that in the absence of any agreement to do so, especially in circumstances where the Respondent provides no equivalent allowance, that the Masters’ allowance should not be treated as part of a salary.

In all the circumstances, I am not prepared to make any recommendation that the Masters’ allowance should have been treated as part of the Complainant’s previous salary.

However, I am mindful of the Complainant’s losses to date, losses into the future, the length of time that this dispute has taken and the toll that it has had on the Complainant. There is no doubt that the Complainant has an ongoing differential salary loss since the start of 2015 to date, between (Point 3 ETB teaching salary) and her current salary. This loss is in the region of €13000 from 2014 to date.  I recommend that this amount now be paid to the Complainant as a lump sum together with a further sum to reflect future salary and pension losses. My preference would be to compensate the Complainant retrospectively for her losses to date and recommend that her employment proceed on higher salary scale point in the future. However, both parties have stated a preference that a lump sum be awarded to the Complainant, therefore this recommendation gives effect to that preference.

To reflect the Complainant’s future salary losses arising from not being in the correct grade and the length of time that this is likely to pertain and also to compensate her for what has been a challenging period for the Complainant in conducting this dispute over many years, having to contend with the Respondent maintaining for most of this period, a partly erroneous defence to the complaint, I recommend an additional compensatory award of €6500.

Total Award: €19,500.00

I find this complaint to be well founded and I recommend that the Complainant be paid the following compensation award:

Award: €19,500.00

Salary – whether previous public sector salary should be reflected in new position