Complainant

Respondent

Anonymised Parties

A Worker

A Semi State Body

Representatives

Cormac O'Dálaigh Communication Workers Union

 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-44444

02/06/2021

The Worker asserts that he should be entitled to a full time acting up allowance given that many of his duties involve those of a higher pay grade.

The Worker commenced employment with the Employer in 1981 as a Clerk. In 2009, he moved to a new division of the Employer when it was set up. At the time there was one manager and two overseers in the division. Following the death of one of the overseers, the Worker in the instant case has been performing work that his deceased former colleague performed and also had the work he had previously performed himself fulfilled by other colleagues. His main responsibility is to ensure that items of a certain value which end up in the division where he works are disposed of in accordance with the Employer’s procedures. This involves him being a key holder and requires use of a security access code. Such access is confined to those of team leader grade and above. The Worker also performs other work which is only done by the other overseer.

In 2019, the Worker sought to be upgraded to the role of overseer by the Employer given the additional work he was doing but he was informed that his request was being denied. This was because the Employer stated that duties he was fulfilling were not specific to the overseer grade and that there was no evidence presented to suggest that only the other overseer could cover his duties while he was on leave or that the Worker and the other overseer could not take annual leave simultaneously.

The Employer stated that when the division was set up in 2009, the workforce comprised of an overseer as well as sixteen clerks. When the overseer was ill or on annual leave, one of the clerical staff, Mr Y, acted up and fulfilled the duties of overseer.

Although the hours in the division were initially 9 to 5.30, the Employer agreed to allow the workers there to do flexitime on the basis that it would not result in any cost increase.

Following the death of the overseer in 2013, Mr Y was appointed to the role as he was already an overseer paid on a personal to holder basis and acted in that role in the overseer’s absence. A competition was then held for the role of acting overseer, to cover Mr Y’s absences, and the Worker in the instant case was the successful candidate. Having subsequently commenced in this role, the Worker was paid an additional allowance only when he acted up in the overseer’s absence. It was also highlighted that the Worker did not have to take his annual leave at the same time as Mr Y but chose to do so because he would receive his acting up allowance when he covered Mr Y’s absence.   

The Employer did not dispute that the Worker’s role had evolved over time but highlighted that many roles in the body have changed over the years. It was also asserted that they concluded a number of agreements with the Worker’s union which provide for such change and resulted in the clerks, of which the Worker is one, being paid a productivity allowance of 12.5% in 2007.

The Employer also highlighted that the Worker only formally made them aware in 2019 of his request to be upgraded despite the fact that he had been fulfilling largely the same role since 2013. In this letter, he highlighted that he felt obliged to attend work at difference times to the overseer to provide supervision and asserted that the other clerks considered him to be a supervisor. The Employer however stated that they never sought to have a supervisor in place outside of the overseer’s attendance.

I note in the first instance that the Worker in the within dispute applied for the role of acting overseer to cover any absence of the overseer and that he can therefore only have been expected to be paid an acting allowance while he was covering his absence.

I also note that an agreement was made with the Worker’s trade union in 2007 whereby a 12.5% pay increase was negotiated which would reward normal change by the union members in their roles.  On the basis of the evidence presented to me, I find that the change in the Worker’s role since 2013 represents a normal evolution of roles as envisaged by the agreement and that the negotiated pay increase reflects this.

I further note that although the Worker himself highlighted that he felt obliged to attend work outside of the overseer’s normal working hours to ensure there was adequate cover, there was no requirement that he do so. I also note that the Employer had agreed with the Worker’s union to provide for flexitime in the division where he worked on the condition that it would not be cost increasing. Clearly however, and crucially in my view, if the Worker in the instant case was to be compensated for working when the overseer was not in attendance because he was working flexible hours, the move to flexitime would in fact increase the Employer’s costs and would be at odds with what was agreed.

While I also recognise that the Worker believes that he is fulfilling duties that are outside of his pay grade, he should have invoked the normal grievance procedure if he found that his workload was becoming too onerous. I note however that he chose not to do so and sought instead to be upgraded, which I do not find the Company should acede to given that the Worker’s union had agreed that the move to flexitime would not result in cost increases and that the Worker had been compensated for normal change by way of a 12.5% increase in the 2007 agreement.

I cannot make a recommendation that is favourable to the Worker for the reasons set out above.