Complainant

Respondent

Anonymised Parties

An Employee

A Public Health Service Provider

Representatives

Aine Feeney SIPTU Workers Rights Centre

J.J. Tevlin 

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-00036364-001

26/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036364-002

26/05/2020

The Complainant commenced employment with the Respondent on 11/5/1984. The Complaint Form was received by the WRC on the 26th May 2020. The adjudication hearing commenced on the 12th January 2021, was resumed on the 8th March 2021 and concluded on the 4th May 2021.

At the resumed adjudication hearing held on the 8th March 2021, the Complainant confirmed that she was withdrawing CA-00036364-002 in its entirety. Accordingly, the case proceeded as an  relations dispute only - ie CA-00036364-001.  

The Complainant outlined that she has been working in the post of Catering Officer Grade 2 in an acting capacity and also outlined various other posts she held in the Respondent. The Complainant stated that since October 2015 she had been requested to sign quarterly contracts for her post. The Complainant disputed the requirement for this and stated that her position had been regularised under the Haddington Road Agreement (HRA). In this regard the Complainant referred to various documentation including a  Request to Hire Form B date stamped 28 APR 2015 which was signed off by the CEO, the Area Manager and her Line Manager which she submitted established her postition as permanent. However, the Complainant stated that she was unaware of this at that time.

 In the course of using a shared computer the Complainant happened across an email from her Line Manager “asking if it is possible to do a u-turn and fill the Catering officer on a temporary basis”. The Complainant queried this and stated that in reply the Line Manager informed her “there was some reason we did it but I can’t remember it now”. The Complainant outlined her efforts to address this matter and have her position made permanent. In terms of payment, the Complainant stated she received the appropriate remuneration backdated to the 1st October, 2013.

The Complainant stated that her Line Manager recommended that she undertake a course in DIT that would be of assistance when the permanent post of Catering Officer was advertised. The Complainant stated that she undertook this course but that unlike other employees she was refused payment of her course fees and expenses. The Complainant outlined the unsuccessful efforts she made to address this. Furthermore, the Complainant stated that whilst she was granted study and exam leave of six days per year, she was deducted two hours pay on the days she travelled to college unlike other colleagues. The Complainant outlined her total expenses for completing the course which amounted to €26,712.80 including travel expenses, tolls and parking fees.

The Complainant initiated a grievance procedure on the 10th October 2019 and a meeting was held on the 19th November 2019. As a result of a conflict-of-interest issue raised by the Complainant it was agreed that the funding aspect of the Complainant’s grievance would be addressed by another manager. However to date this has not occurred which the Complainant maintains is in clear breach of the Respondent’s procedures and  contrary to due process. The Complainant also stated that she was not furnished with the minutes of the meeting of the 19th November 2019.

In addition at the meeting of the 19th  November 2019, the Respondent raised the Complainant’s access to the aforementioned email as a data protection issue. This resulted in the Complainant being called to a stage I disciplinary hearing.

It is the position of the Complainant that to date the Respondent has not appointed any person to deal with her grievance pertaining to her course fees and expenses. The Complainant stated that she feels she has been victimised as a result of raising her grievance and is seeking the same financial support for her course of study as her colleagues. Further, the Complainant maintains that she has been wilfully obstructed with regard to the regularisation of her position on a permanent basis. In that regard, the Complainant is seeking that she will be confirmed as permanent with retrospective effect from 30 April 2014.  The Complainant cited various cases in support of her position.

The Respondent outlined the Complainant’s employment history including the circumstances of her appointment to the acting position of Catering Officer Grade 2 in 2009. The Respondent stated that at the time additional remuneration was not available and accordingly, the Complainant was initially not granted an acting allowance. Further, the Respondent stated that in 2012 a moratorium was in place which prevented the permanent backfilling of positions. The Respondent stated that under the HRA, Circular 17/2013 was issued which provided for the regularisation of staff who had been acting in a long-term positions subject to their ability to comply with certain criteria which it stated the Complainant did not meet. However, the Complainant was appointed by way of a Specified Purpose Contract with effect from the 1st  October 2013 with the appropriate remuneration and conditions. The Respondent stated that to date the Complainant has remained in the post and has had her contract renewed on a number of occasions. In addition management has applied by way of stated  business cases to have the post approved for permanent filling. According to the Respondent the regularisation of the post is now possible due to the issue of Circular 068/2020 and this will occur on the 15th  December 2020.

The Respondent outlined the purpose of the Request to Hire Form B and stated that the Complainant misunderstood the purpose of the Form and that contrary to what she was suggesting, this was an application form for management to request approval for the post of Catering Officer Grade 2 to be filled permanently but that the form did not indicate that the Complainant was permanent or to be made permanent.  The Respondent stated that the form “simply provided approval to proceed to open competition for the filling of the Catering Officer 11 post”.

In terms of the email seen by the Complainant which requested a U-turn on the filling of the post temporarily, the Respondent stated that at the time the Complainant did not possess the necessary qualifications for appointment to the post of Catering Officer Grade 2 and that accordingly:  “The purpose of the email from the Catering Manager was to allow the complainant the time to obtain that qualification and once achieved the Catering Manager would then proceed to advertise the role in a permanent capacity and the complainant would be eligible to apply”.

The Respondent stated that the Complainant will be regularised in her post retrospectively from the 15th December 2020 and this will remove the temporary nature of the Complainant’s position without the need for her to go through a competitive process. Had there been a requirement for open competition, the Respondent maintained that the delay facilitated the Complainant in gaining the relevant qualification to enhance her chances of success in any such competition. Accordingly, the Respondent maintained that  the Complainant had taken “the negative interpretation….” of the Catering Manager’s email.

In relation to the funding of the course commenced by the Complainant in the DIT in 2018, the Respondent stated that at the time there was no budget for the payment of education fees and that this is still the position. Further, the Respondent maintained that the Complainant had not provided any evidence of payment of fees to other employees. The Respondent also stated that the Complainant was required to make application for approval for payment of fees in advance of commencing the course of study which she failed to do. The Respondent outlined the process to be followed including the requirement to arrange a meeting with her Line Manager and complete an application form. As regards funding, the Respondent stated that “The local budget holder must provide costs of such educational courses. The standard practice was to cover 50% of the course fees where the employee would sign an undertaking to complete the course…..”the Respondent does not pay other expenses such as travel, tolls or parking and that this aspect of the Complainant’s claim was “grossly overstated”. In relation to the Complainant’s assertion that she was deducted two hours each week because she left early to go to college, the Respondent stated there was no evidence of an any such deduction from the Complainant’s salary. The Respondent stated that the Complainant was provided with study and exam leave.

In relation to the Complainant’s grievance procedure, the Respondent accepted and apologised that to date, a formal outcome had not yet issued to the Complainant. In this regard, the Respondent accepted that it did not comply with the terms of its own procedures as the Complainant was entitled to a formal decision/outcome within the specified timeframe. By way of explanation, the Respondent stated that as the issue in relation to the Complainant accessing the Catering Manager’s email arose at the grievance meeting of the 19th November 2019 “This had the effect of deflecting the hearing focus from the grievance”. Thereafter the Covid-19 pandemic occurred. The Respondent stated that the potential breach of data protection has “now been fully examined and the matter closed….”. The Respondent refuted any suggestion that the Complainant was victimised by virtue of her raising a grievance.

I have considered all the submissions and documentation in relation to this dispute including the record of the Respondent’s meeting with the Complainant of the 19th November 2019, copy of the Request to Hire Form B date stamped 28 APR 2015, copy of the Complainant Line Manager’s email of the 2nd October 2015, the Job Specification and Terms and Conditions of the Catering Officer Grade 2 post, the various correspondence concerning the Complainant’s acting up post and the terms of the Respondent’s Grievance Procedure.

In relation to the Complainant’s claim for regularisation of her position, I note that the Complainant has confirmed she is not due any outstanding pay. I further note the undertaking by the Respondent that the Complainant will be retrospectively regularised in her position with effect from the 15th December 2020. In that regard post hearing, I received  copy of the Complainant’s Contract of Employment to this effect and copy letter sent to the Complainant confirming that she met the criteria for regularisation. Having considered this matter I am satisfied that the Request to Hire Form B was not a confirmation of the regularisation of the Complainant into the Catering Officer Grade 2 post on a permanent basis. In that regard, I accept the position of the Respondent that the Form was seeking approval to fill the post on a permanent basis but at the time that would have involved a competitive process. Accordingly, I am of the view that the actions of the Respondent did not amount to wilful obstruction. However, the Respondent did not clarify matters adequately with regard to the Complainant’s contractual position and overall, I consider that the prolonged requirement for the Complainant to sign quarterly contracts was unreasonable and left her in a position of ongoing uncertainty.

In relation to funding for the course of study undertaken by the Complainant, I accept the position of the Respondent that prior approval should have been obtained in accordance with its usual procedures. I also accept the position of the Respondent that its course funding arrangements did not cover travel, tolls or parking fees and that the Complainant has not provided any evidence of deductions from salary. Further, I am of the view that it was in the Complainant’s interests to undertake this further study given the Job Specification and Terms and Conditions of the Catering Officer/Grade 2 position prior to regularisation. That being said the Complainant was out of pocket as a result and overall, I consider that investment in continuous professional development by any employee is ultimately of benefit to the employer.

In relation to the Complainant’s Grievance Procedure initiated by her on the 29th October 2019, I note that the Respondent has accepted that this was not handled in a timely manner or in accordance with its own procedures. However, I find that the Complainant has not demonstrated that she was victimised as a result of raising this grievance. The issue concerning the alleged GDPR breach is concluded.

In light of the foregoing I make the below recommendations.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and accordingly I recommend:

·        That the Respondent pay compensation to the Complainant of €1000 in respect of the delays she encountered in processing her grievance procedure;

·        That the Respondent enter constructive negotiations with the Complainant in order to financially compensate her for undertaking the study course having regard to its relevant policies and practices. This recommendation does not extend to such other expenses as has been identified by the Complainant – such as travel, tolls and parking;

·        That the Respondent pay compensation to the Complainant of €3,000 in respect of the delays, uncertainty and lack of transparency encountered by her in seeking to have her position regularised.

Regularisation of employment position; course study fees, Grievance Procedure