Complainant

Respondent

Anonymised Parties

A Field Worker

A Public Body

Representatives

David Curtin, SIPTU

 Human Resources 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-00043553-001

12/04/2021

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 12 April 2021, the Union, on behalf of the Worker submitted a Dispute for investigation to the WRC.

The Union claimed a shortfall in remuneration for the period 7 July 2017 to 14 May 2018 which related to the circumstances of the Workers appointment to a new role.

The claim was disputed by the Employer, who prepared an extensive submission in support of this position.

The Union presented the case orally in the presence of relevant representatives.

The Worker commenced work with the Employer in May 1990 and had held several roles since that time. He has recently been confirmed as permanent in his present field-based position.

This case concerns the Workers appointment to his present role.

The Union outlined that the Worker had signed and returned contract for this role on 7 July 2017. At that time, the terms and conditions were reflected in a fixed term contract with an unspecified start date accompanied by an end date of 31 December 2017. He signed and returned a subsequent contract for the same role on a fixed term basis on 16 April 2018.

The Worker formally commenced in the role on a fixed term basis on 14 May 2018. He has expressed a defined sense of dissatisfaction that the inordinate delay in his formal commencement in the role was unjustified and payment in the role ought to have commenced commensurate with the return of the first contract.

The Union set out a loss of earnings table, which incorporated a breakdown of losses sustained in the face of the delay. This was recorded as €6,074.28.

The Worker confirmed that he was puzzled by the delay in his appointment. He followed this up and was informed that a replacement was waited for his role. However, he considered a 10-month delay to be excessive.

The Union argued that the position had been fully funded throughout and the wording of the contracts reflected a continuity which was not recognised for pay purposes. Those contracts outlined the complainant’s obligation to serve in the new role. The delay could not be attributed to the Worker in this case, who always merely sought to seek payment for contractual terms.

The Union asked that consideration be given to the depth of delay in this case, which they contended was unprecedented at 33 weeks.

They confirmed that the Worker had received a discretionary retrospection to 28 March 2018. They qualified that this had not “sealed a deal “in the case as the claim had subsequently gone through the grievance procedure without resolution.

The Worker himself addressed the hearing and explained that this process of delayed assignment to this role had troubled him greatly. He had taken steps to explore a reason for this delay and he had not received an explanation. He knew that he had complied with the administrative requirements to commence in post and felt the exclusion from this desired role keenly. He explained that a distance has since arisen in his relations with his employer.

The Union confirmed that the Worker had provided locum in the grade during the period of claim, which had mitigated the amount claimed. However, he remained dissatisfied that the locum cover took place while he should have been formally appointed to the role.

The Union concluded by re-affirming that the Worker was not responsible for the delay in this case. It was not his fault, and he should be compensated as claimed.

The Employer operates a public service and has employed the Worker in the case since 1990 as General Operative. The Employer had disputed the claim as it cannot be held liable to pay wages when the complainant did not perform the role.

In 2003, the Worker applied for an interservice transfer and commenced in the Water service in November 2009. He has remained in that service and augmented his grading to Grade 5.

Following a Competition, the Worker was placed on a panel for a Temporary Post at Grade 5. He was offered a contract for this position on July 7, 2017. The Employer received notification of an acceptance of contract on the same day. However, the contract did not include a commencement date and carried the following:

A start date will only be determined when the signed contract is returned.

The Employer was impeded in making an appointment at this time due to a concurrent Industrial Relations internal matter, which did not involve the worker in this case. The Worker continued in his main role and undertook paid locum as it arose. The Employer presented details of this cover at hearing.

The Employer issued a revised contract for the temporary position at Grade 5 on April 13,2018. On May 3, 2018, the Employer confirmed:

With effect from Monday, 14 May 2018, you will be assigned to X

This position was subject to permanent appointment in October 2020 and the Worker was duly appointed.

The Employer contended that the claim for loss of earnings was hypothetical as the worker was not present in the Grade 5 position throughout the period of the claim, albeit during infrequent locum for a separate and distinct grade 5 role. The Employer submitted that the Union had incorrectly identified the commencement date as consistent with the day on which the contract was signed and returned. The Public body could not pay a staff member from public funds for work which had not been performed. The Public Body had identified that start date would follow the return of the signed contract. These dates were always   distinguishable from each other.

In this case, the Employer was engaged in a separate complicated operational issue which caused a delay in the start date assigned to the worker. This did not involve the Worker.

The Employer had applied a discretionary good will gesture and made a retrospective payment at Grade 5 for a period of 7 weeks, March 26-May 14, 2018, the date of appointment. The Employer could not be held liable for further monies claimed.

Both parties had engaged on the topic on several occasions culminating in a communication dated November 6, 2020, which re-affirmed the good will gesture paid in the case.

The Employer was clear that the Worker had not been assigned to the specific Grade 5 role during the period of his claim and he cannot be paid for this period, outside of the locum and good will gesture already paid.

I have considered both parties oral and written submissions in this case. I have been requested to investigate this Dispute and make a recommendation setting forth my opinion on the merits of the dispute.

The basis of this dispute arose in 2017. This is a historical dispute. I am satisfied that both parties have since engaged and made some  meaningful effort to resolve the matter prior to the hearing day. I accept   the claim is presented for Adjudication at this point. I explained that I would explore the events presented through the window of “fairness and reasonableness” in Industrial Relations   terms.

Firstly, I note that the Worker was a first-time attender at interview for the position of Grade 5. He was placed at No 4 on the resultant panel and had high expectations of being appointed. At hearing, I acknowledged that the Worker has since been deemed to have permanent tenure in this role. This is an important consideration.

The claim before me concerns the administrative lag in effecting the workers actual start date in the job, which eventually rested as 14 May 2018 with a discretionary retrospection to 28 March 2018.

Therefore, the loss of earnings claim is framed July 7, 2017, to 27 March 2018.

I accept that this period was populated by locum cover undertaken by the worker which has been paid.

I explored the status of the payment of discretionary retrospection to assess whether it could be regarded as a full and final settlement in the form of a compromise agreement. I am satisfied that it was a unilateral positive action by the Employer and accepted by the Worker, without effecting closure. This is demonstrated by the parties continued meetings in seeking to resolve the matter locally prior to referral to WRC in April of this year.

I have reviewed the cover note attached to the contract offered first in time to the Worker in July 2017.

It stated that:

“a start date will only be determined when the signed contract of employment is returned “

This implied a certain conditionality. I accept that the worker returned the signed contract promptly and the clock began ticking on his expectation of appointment from that time. He waited 10 months for this appointment.

I found a certain ambiguity in the contractual terms, where the start date was unspecified on both fixed term contracts in 2017 and 2018. This was augmented to “a date to be confirmed “on the contract of indefinite duration in October 2020.This for me at least signalled a differentiation from the date of the returned signed contract and a commencement date.

However, in all that I have heard from the parties in this case, my attention has been drawn to the delay in appointing the worker to a higher grade. One to which he had a reasonable expectation of access, once his contract was signed and returned.

The Employer told me that they were required to address a parallel IR issue, which did not involve the worker, which caused an unforeseeable delay in appointing the worker. They were not at liberty to disclose these confidential details directly to the worker and appointed the worker at the earliest opportunity.

The Union /worker told me that the Worker became isolated and confused by the delay in his appointment and sought to rely on contractual terms to secure correct remuneration. I note that the worker did not formalise his grievance during the period of the claim. It may have assisted if it had been formalised much earlier than 2018.

For my part, I found that the Worker became lost in the process of his own appointment.  I understand that the nature of any parallel IR matter may need   to be shrouded in confidentiality and the employer may not be able to disclose the nature of this to a Worker.

However, the worker in this case, should have been addressed much sooner on the extent of the delay and provided with a floor plan for his appointment. The absence of this approach has caused a residual and lingering disconnect between the worker and his employer. I find this regrettable and something which should be addressed in the context of the outcome of this case.

However, I cannot accept that the Worker can attract pay for the time that he was not formally assigned to the Grade 5 position. I have, however, found that he was faced with an inordinate and unprecedented   delay in his appointment to his Grade 5 position. I accept the argument advanced by the Employer, that this period was populated with periods of locum work which attracted payment of higher duties and mitigated against the sum claimed by the Union. I also accept that he received a consideration of retrospection by the back dating of his start date. This suggests to me an awareness of the depth of the delay associated with the appointment.

I find that the delay in commencing the worker in his Grade 5 position was both unfair and unreasonable in the circumstances and did result in reduced pay for the Worker, which was offset in part, by his concurrent locum income.

  I find merit in this Dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the Public Body should engage with the Union and Worker within 4 weeks of this decision to apologise for the delay in appointment to the position of Grade 5 in 2017. I recommend that the Worker actively considers this as closure on this protracted period and moves forward.

I also recommend that the Public Body should pay €2,500 in compensation to the Worker in respect of the protracted delay in his appointment.

I make this recommendation in full and final settlement of this Dispute.

Dispute on Assignment To new role