LCR22504

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

TEAGASC

- AND -

A WORKER
(REPRESENTED BY FORSA)

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer's Decision No(s)ADJ-00019376 CA-00025291-001

BACKGROUND:

2.The Worker & the Employer both appealed the Adjudication Officer’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 17 September 2021.


DECISION:

This is a double appeal by Forsa (on behalf of a Worker) and Teagasc of an Adjudication Officer’s Recommendation ADJ-00019376.

The matter before the Court relates to the classification of the Worker as a new entrant when she joined Teagasc as a temporary Agricultural Development Officer Grade 1 (Education Officer) in November 2014.

Forsa contend that in line with a Department of Finance Circular dated 21 December 2010 (the Duffy Circular) the Worker’s previous public service role as a part-time tutor with Cavan and Monaghan Education and Training Board (ETB) should have been considered when deciding her starting salary and grade. Teagasc reject the claim.

The Adjudication Officer held that the Worker’s previous public-sector role was analogous to the role she was appointed to on joining Teagasc and, as a result, she should not have been treated as a new entrant.

The Worker’s claim that a master’s allowance payable to her in that previous role constituted a core part of her salary was rejected. The Adjudication Officer recommended a compensation payment of €19500, comprising €13000 for losses incurred with a further €6500 for future salary and pension losses.

Teagasc appealed to the Labour Court on the basis that it had correctly classified the Worker as a new entrant as the Worker’s previous public service role was not analogous to her role as an Agricultural Development Officer Grade 1 (Education Officer).

Forsa appealed the recommendation on the basis that the master’s allowance payable to the Worker in her previous role was a core part of her previous salary and the Adjudication Officer’s award should be increased to reflect this.

The standard practice of the Court in appeals of this nature is to look at matters afresh and assess the claims before it on its own merits. In this case the Court must first assess whether the Worker was entitled to have her previous public service as a part-time tutor recognised when she commenced employment with Teagasc for the purposes of determining her starting salary as an Agricultural Development Officer Grade 1 (Education Officer). Should the Court find the Worker was incorrectly classified as a new entrant, the Court must then assess whether a masters allowance paid to her in a previous role should be considered to be a core part of her previous salary and so relevant in determining her new starting salary and grade.

The 2010 Duffy Circular provides a mechanism for public servants to have prior service recognised for determining starting salary and grade. It states that public servants employed in the public service before December 2010 ‘will not generally be regarded as new entrants’when recruited into ‘the same or analogous grade/role as their previous public service employment’.

The Circular does not define what constitutes an analogous grade or role. It does provide some guidance at paragraph 9(ii) where it states:

‘As an example, a person employed for some months as a substitute teacher, who then has a 3-month period of no employment and is reemployed as a substitute teacher will remain on the rate applicable before 1 January 2011. However, if that person following their first period of employment as a substitute obtains employment a permanent contract of employment as an assistant lecturer in a university, the revised rate at 1 January 2011 will apply.’

The question for the Court to resolve is whether the role of a part-time tutor with Cavan and Monaghan Education and Training Board (ETB) is analogous to the role of an Agricultural Development Officer Grade 1 (Education Officer) with Teagasc. The Court was provided with copies of the Worker’s contract of employment for the role of part-time Adult Education Tutor and a job description for the role Agricultural Development Officer Grade 1 (Education Officer) with Teagasc.

In response to questions from the Court on how the Worker was classified as a new entrant, Teagasc advised that it reviewed the Worker’s previous public service role as outlined in her application form against the roles and responsibilities of her new role on entry to Teagasc.

It found the duties and responsibilities of an Agricultural Development Officer Grade 1 (Education Officer) were not the same as the duties and responsibilities undertaken by the Worker as a part-time tutor and so did not meet the requirements set out in Section 9(ii) of the Duffy Circular.

As the roles were not analogous the Worker was correctly placed on the minimum point of the scale in terms of starting pay on her commencement. Teagasc further submits that any decision that overturns established government policy in respect of starting pay on recruitment for new entrants could have considerable repercussions across the public service.

Forsa submit that the Worker’s position as a part-time tutor was a teaching role which, although not the same, shared many of the same features as her role on entry to Teagasc as an Agricultural Development Officer Grade 1 (Education Officer). Both roles were analogous as they primarily entailed the teaching of students.

Furthermore, Forsa submits that where a Worker undertakes analogous work in a new role he or she should not be at a loss. In this case, a master’s allowance constituted a core element of the Worker’s pay prior to joining Teagasc and since 2018, the master’s allowance has been incorporated into the revised salary scale for teachers.

The Court is conscious of the length of time that it has taken for the Worker to progress this appeal. While the Worker joined the organisation in November 2014, the matter was only referred to the Workplace Relations Commission in January 2019.

Teagasc accepts that confusion arose over the application of the Duffy Circular in relation to the applicable timeframe for considering previous public service employment.

This was clarified by the Department of Public Expenditure and Reform in 2017 which advised that the six-month threshold for the definition of a new entrant applied for superannuation purposes only and not starting pay. In 2019 further clarification was provided by the Department of Public Expenditure and Reform directly to the Worker when it advised that no time limits applied between the date prior to 31^stDecember 2010 when a public servant was in employment and their return to work, as long as it was ‘to the same or an analogous grade/role as their previous public servant employment’.

It confirmed that where someone takes up a different role in the public service they will be treated as a new entrant on return and the determining factor was the last role they occupied in the public service.

It is unfortunate that such misunderstandings arose over the application of the Duffy Circular which gave rise to delays in addressing the Worker’s claim that she was incorrectly classified as a new entrant.

Notwithstanding the above, both parties agree that the appeal before the Court hinges upon whether or not the two roles undertaken by the Worker can be considered to be an analogous grade or role.

To assess whether or not the roles are similar or analogous requires an objective analysis of the duties and responsibilities attached to both roles. In the absence of a specific job description setting out the duties and responsibilities of the role undertaken by the Worker prior to joining Teagasc, the Court invited the parties to submit any further relevant information that could assist the Court in its review. A job description for the role of part-time tutor with Cavan and Monaghan ETB was subsequently submitted to the Court by Forsa and Teagasc was given an opportunity to respond.

The Court has reviewed the material submitted and considered the oral and written submissions made by the parties.

In the Court’s view, an analogous role or grade does not mean that a position held prior to being appointed to a new role must be the same role, but that they must be substantially similar. In order to determine that the two roles in this case are analogous, the Court must be able to satisfy itself by objective standards that the work undertaken is comparable or similar in nature.

The Court has carefully reviewed the job description provided for the part-time tutor role with Cavan and Monaghan Education and Training Board undertaken by the Worker prior to joining Teagasc and the job specification for the role of Temporary Education Officer issued to the Worker on joining Teagasc in November 2014.

Based on the information provided to the Court, the Court is unable to establish that the roles of part-time tutor role and Temporary Education Officer are analogous. While the role of Temporary Education Officer includes some duties that are similar to the part-time tutor role in terms of the delivery of teaching, it encompasses a broader range of duties and responsibilities in relation to organising and coordinating the delivery of training programmes across locations.

On the information provided to the Court it cannot accept that the roles are analogous and meet the requirements set out in Paragraph 9(ii) of the 2010 Duffy Circular.

In the circumstances, the Court is of the view that the Employer was correct to classify the Worker as a new entrant when she joined the organisation in November 2014. It is therefore not necessary for the Court to consider whether an allowance paid to the worker in her previous role should be considered a core part of her previous salary for the purposes of determining her starting salary and grade in a new role.

The Worker’s appeal does not succeed and the Employer’s appeal is upheld. The Adjudication Officer’s recommendation is set aside.

The Court so decides.

NOTE

Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary.