Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

Martina Weir Siptu - Works Rights Centre

Keith Irvine Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00046110

10.09.2021

  The respondent’s representative submitted as follows :

.1. The claimant commenced employment with the Council as an Executive Engineer on 1st January 2007.

 2.2. In 2020, she applied for the Senior Executive Officer role advertised through the Public Appointments Service (PAS) and was successfully placed on panels for appointment.

2.3. The claimant was offered a Senior Executive Officer (SEO) position with Westmeath County Council and as she was in an Acting Senior Executive Engineer (SEE) role, they offered her a salary of the 7th point on the SEO salary scale, based on the salary of her Acting role and not her substantive post. This was incorrect and not in accordance with the Department’s circulars.

 2.4. Despite not having received an offer of appointment at SEO level with Roscommon County Council (having been placed on that panel following the PAS competition), the claimant privately raised a query regarding starting salary with the Council’s HR Manager on 21st January 2021 and it was mistakenly indicated to her by text that the Acting salary would be taken into account .

2.5. On 12th March 2021 the claimant was then offered an SEO role with the respondent  County Council which she accepted, declining the offer with X   County Council. However, in accordance with Circular 02/10 (Appendix 2), acting salary can only be considered when the person being promoted is appointed into the grade in which they were acting.

2.6. Otherwise, Circular 05/67 (Appendix 3) applies which means that the substantive post determines starting salary in a promotional role. In this case, the claimant was not acting in the role into which she was promoted on a permanent basis. She was in an Acting Senior Executive Engineering role and promoted into an administrative role of Senior Executive Officer. Her substantive post is that of Executive Engineer.

 2.7. Once the issue was formally assessed by HR, it was apparent that in line with the circulars, the Council would not be able to take the acting salary into consideration.

 2.8. The Council had also raised the issue with the Department to confirm the correct understanding of the circular and its applicability. In its response on 16th April 2021 (Appendix 4), the Department confirmed that Circular 02/10 was not applicable as the claimant had not been appointed into the role which she had been acting in. It was also confirmed that the claimant’s substantive post of Executive Engineer would be the determining factor for the promotional SEO salary and starting salary would be determined in accordance with Circular 5/67 where they stated; “1. ln accordance with EL02/2010 they would get the benefit of total remuneration when consideration is given to their starting point, but this does not apply in this case as they are not being promoted into the grade in which they were acting up. 2. The substantive point on scale (EE 12th point) should be taken into account when assessing the starting point on the SEO scale, which would be nearest but not below, plus one.”

2.9. Based on this, on 21st April 2021 the claimant was offered the 4th point of the SEO salary scale in accordance with Circular 05/67: - Substantive point on scale (Executive Engineer, 12th point - €70,245) - Nearest to €70,245 but not below plus one on the SEO salary scale - €75,151 (4th point).

2.10. The claimant queried the salary with the Council, and on 5th May 2021 it was confirmed to her by email that they had consulted with the Department and the LGMA about her starting salary and that it had been calculated correctly.

 2.11. The claimant commenced in the SEO role on 10th May 2021. She lodged a formal grievance under the Council’s Grievance Procedure (Appendix 6) in relation to her starting pay on 21st May 2021. On 14th June 2021 the Council appointed an external investigator to carry out an investigation into the issue. The investigation report, issued on 12th August 2021, did not uphold her grievance. (Appendix 7) It found that: “…the Respondent correctly applied the rules governing starting pay for staff in the Local Authority when calculating her starting point on the SEO salary scale and in so doing, she was correctly placed on the 4th point of the SEO scale.”

2.12. The claimant then submitted a complaint to the Workplace Relations Commission.

 3.1. Circular 05/67 governs starting pay on promotion across the local authority sector and the Council applied the applicable rules in this case.

 3.2. In addition to the provisions of 05/67 acting salary can also be taken into account if the employee is promoted into the grade into which they are acting in accordance with Circular 02/2010 where it is stated; 5. If an officer while in receipt of an allowance for higher duties is promoted into the grade to which they are acting: (a) The officer’s starting pay on promotion will be the more favourable of (i) Starting pay calculated in accordance with normal arrangements or (ii) The equivalent of her/his total remuneration (i.e., salary plus allowance on the date of promotion). The date on which the next revision of the higher duties allowance would have arisen (i.e., anniversary of assignment) becomes the officer’s new incremental date.

 3.3. Circular 02/2010 was introduced on the basis of a claim submitted by SIPTU/LAPO and FORSA seeking equity in the Local Government sector to the application of provisions in the civil service where an officer while in receipt of an allowance for higher duties is promoted into the grade to which they are acting. This claim was conceded in 2010 and the local government sector applied the provisions of section 5 of the appendix to EL 38/2007 (Appendix 8).

 3.4. The purpose of Circular 02/2010 was to provide an equitable approach reflecting that if an individual had acted in a post for a period of time, then the individual would benefit from incremental credit if they were promoted to the post in which they were acting, reflecting the benefit of their experience in that grade whilst acting. 8

3.5. In effect, circular 02/2010 provides for recognition of ‘time served’ in an acting post once an individual is promoted into that post. However, should an individual be promoted to a different post, as in this case, then this circular does not apply. Circular 05/67 bases promotional pay solely on substantive pay. There is no provision within it to take any period of acting into account for salary calculation purposes. The experience gained by the claimant whilst in an acting position would have been considered at interview.

 3.6. The Council adhered to the terms of the relevant circular and have no discretion to do otherwise. The Department confirmed this when they were consulted.

3.7. Based on the claim submitted and represented by SIPTU, it would appear that the Union seeks to change the provisions of Circular 02/2010. However, this is not feasible either within the Council or the local authority sector on a unilateral basis. The original claim by SIPTU/LAPO and FORSA was for parity with Circular 38/2007 which continues to apply to the Civil Service. In addition, the Education sector by way of section 2.8 of Circular 0048/2020 (Appendix 9) have now applied the same approach with regard to appointments into the grade in which an individual is acting. Therefore, any change to Circular EL 02/2010 or its application would have implications across the public sector as a whole.

3.8. This issue was recently considered by the Labour Court in a claim submitted by Forsa for some of its members in LCR22485 (Appendix 10) where the Labour Court recommended; “the Court does not believe it would be appropriate to interpret a range of national circulars affecting workers and authorities across the sector nationally by way of making a definitive recommendation in this matter which affects four persons.” The Court recommended that the issue be placed on the agenda for the next meeting of the national forum and any resolution found should then be applied.

 3.9. This issue has been raised recently by the unions at the national forum and is currently under review. There are a number of similar cases across the sector. The Council has no discretion in calculating starting salary and must abide by the relevant circulars which govern the sector.

Conclusion

 4.1. The Council have reviewed its position with regard to the claimant’s starting salary and determined that the applicable circular has been implemented correctly according to its terms.

4.2 The issue being raised is wider than that of one individual claim.Any concession would have a significant impact across the civil and public sector with regard to the pay and conditions of a body of workers.The Labour Court in its recent decision have recommended that any prospective change sought should be done via the appropriate national IR mechanisms available.

4.3The Council respectfully requests that the Adjudicator reject the claim and find in its favour in the case at hand.

The representative advised that the main matters were not in dispute and reported that the Council had examined the various circulars. It was submitted that the salary offered was based on those circulars. The respondent was satisfied that the circulars were applied correctly. The representative  submitted that the matters had been raised at national level on a collective basis about staff who were promoted to grades they were not acting in and it was acknowledged that circulars currently did not cater for those scenarios. The representative was unable to comment upon  the situation in the Local Authority where the claimant had been offered an SEO with full recognition of her technical service. It was suggested  that this was an error on the part of that Local Authority. It was contended that cross stream promotions can only be dealt with by circulars that exist and Local authorities did not have discretion to digress from that position. It was submitted that the 2019 Civil Service circular being invoked by the union , did not apply to local government positions. The representative accepted that Circular 2/10 doesn’t apply to the instant case.It was acknowledged that the trade unions had raised the principle of recognising acting as relevant service for assimilation purposes. The HR manager set out her recollection of her exchanges with the claimant about what point of the scale would apply and accepted that she may have phrased it badly in giving an indication of where the local authority might place her but stated that she hadn’t checked the circulars. It was submitted that historically  it was substantive pay rather than existing pay that was taken into account in determining assimilation. The Council had sought advice on the matter and their position remained as set out in the submission.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. I accept the union’s contention that the respondent had an opportunity to object to the hearing on the basis of the dispute affecting a body of workers but did not do so and accordingly I am satisfied that I have jurisdiction to investigate the complaint .

I have considered the various circulars relied upon and have concluded that they are silent on the matter of what should apply in the circumstance of a cross stream promotion. It would appear that some councils are choosing to exercise discretion in favour of cross stream candidates but others and specifically  the claimant’s employer are interpreting the silence in the circulars as a basis for not conceding recognition for service that is clearly a factor in the candidates successful promotion. It is clear from the Dper 2014 document that the policy to apply across the Civil Service at least was that barriers to cross stream promotion should be removed .It would appear  the Dept of Environment’s tardiness in making the appropriate amendments to circulars to remove such barriers to cross stream promotions now adversely and detrimentally   affects the claimant – whose success must have been influenced by her previous 7 years technical service which the employer is ignoring in the context of incremental assimilation. I don’t accept the claimant should be penalised for a lack of action by other  bodies in making the appropriate amendments to remove barriers to cross stream promotions. I do not accept the respondent’s contention that floodgates could open arising from concession of this claim. It was not unreasonable for the claimant to form an expectation of getting the 7th.point of the SEO scale on foot of the indications from her current employer and the offer made by Council X. While the ultimate removal of barriers to cross stream promotions may well have to be sorted through the revision of circulars I cannot ignore the 2014 policy of Dper – encouraging cross stream promotions – which still has not been given effect to by  some public service employers   including the claimant’s  employer. In all of the circumstances , and given the unique backdrop to the dispute – ie the initial positive indication from the employer and the contract offered by council X -  I am upholding the complaint and recommend that the claimant be appointed to the 7th.point of the SEO scale with effect from the 21st.May 2021 .

I am upholding the complaint and recommend in favour of the claimant.