Complainant

Respondent

Anonymised Parties

A Senior Manager

A Healthcare Organisation

Representatives

Tony Martin IMPACT Trade Union

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1990

CA-00041460

8/12/20

The Complainant transferred to the employment of the Respondent in July 2013.  Prior to the transfer he had been a social care manager but had sought a move away from that role into a more business-oriented role.  While he had been re-aligned to a Grade VII Project Manager role with the requisite annual leave entitlement his grading was not changed on the SAP system. In 2012 he was appointed as Business Manager, with all relevant responsibilities assigned.

The Complainant contended that the Respondent refused to implement the findings of a collective agreement reached between the union and the employer.  The agreement related to the implementation of a job evaluation finding following an independent and impartial job evaluation exercise by a party agreed by both sides.  In the circumstances, the Complainant lodged a complaint under section 13 of the Industrial Relations Act 1990 seeking the implementation of that decision and adherence to the collective agreement. 

The Respondent confirmed that the role of the Complainant had been evaluated by an independent adjudicator and that they had in turn put that proposal to the Department of Children, Equality, Disability, Integration and Youth, seeking sanction to implement the recommendation of that independent evaluation.  The Respondent confirmed that in the context that the Department had not given sanction for the implementation of the recommendation, they did not now have authority to implement the recommendation.

The Complainant submitted that in October 2011 he started the process of transferring from residential services into the new organisation.  The Complainant had started an MSC in Management and was looking to move away from Social Care Management into a more business-oriented role.  It was noted that the Complainant was already Grade VII Project Manager so he would have been entitled to 32 days annual leave rather than 27 in his previously held clinical role.  The process of changing him on the IT system was not actioned by HR. 

He submitted that his role continuously grew and in late 2012 a new area manager was appointed and at that time the Complainant was formally appointed Business Manager in his area with a job that encompassed all of the business functions as well as the management of administrative staff.  These included HR, Finance, Estates, Service Level Agreements, Management of admin staff, FOI, etc.  This area was one of the first, if not the first area in the country to have this role and the role was designed based on the HSE Area Administrator or Grade VIII position.  This resulted in the Complainant being firmly placed within the Senior Management Team, equivalent Grade VIII and above, and organograms and presentations including a local service delivery framework to the then Department of Children and Youth Affairs on the 9th May 2014 illustrated this.  (A copy was appended to the submission)

He submitted that on the 19th July 2013 the Area Manager forwarded him a circular from Corporate Employee Relation Services on regularisation, circular 17/2013.  The Complainant was initially on, what became known as list 1, but his name was then removed as he was to be regraded under an administrative review as advised by the then Regional HR representative; his temporary appointed PSW colleagues proceeded under that process.  After some delays in the initiation of the process in July 2015, the Complainant submitted his clerical admin review 2015 form to both local Area Management and Regional HR for signature, which they duly actioned.  After delays in August 2016 he was informed by the then Regional HR representative that he was not being reviewed under that scheme as he was a Social Care Manager, despite it being clear and noted by the employer that he had demonstrably not been a Social Care Manager for many years.  A period of discussion ensued over the following year regarding possible solutions.  As the Complainant had the support of both old and new managers, he presumed it would be resolved in the same vein as other resolutions had been put in place for other similar roles and colleagues. 

He submitted that in November 2017 the Complainant was encouraged by the Regional Services Director to pursue the matter more directly with the assistance of the union.  There were further meetings and communications on the matter in the first six months of 2018 and those engagements included a restatement by Regional HR that again the Complainant would be evaluated.  Despite this commitment, in June 2018 the Complainant was informed by the Service Director and Regional HR that he could not be reviewed and that no Grade VII to grade 8 process existed.  The Complainant submitted that he then started an exhaustive FOI process where he showed amongst other things, seven Grade VII’s were regraded under the 2015 process, including some at the very time of his application.  When he eventually received his FOI documents, he lodged a grievance in May 2019.  He further submitted that in August 2019 a third-party review took place and was completed by an independent person.  The outcome of that review conceded that the Complainant was demonstrably an administrative grade and was regraded to Grade VII, dating back to the date of the transfer of undertakings. 

The Complainant submitted that an agreement was reached with the union to evaluate the role and this was done in March 2020, however at the date of hearing, he submitted that he still awaited implementation of the finding of that evaluation process. 

The Complainants’ representative submitted that the employer had created a situation whereby the Complainant was discharging roles and responsibilities that were far in advance of his substantive posts, that his current role was not recognised appropriately, a position that has been conceded by the employer. 

The Complainants’ representative submitted that efforts to address this situation had been exhaustive but were unsuccessful on foot of errors and omissions by the Respondent and that it was no fault of the Complainant and the difficulty had arisen.  The Complainant representative submitted that the Respondent had stated that “it was accepted that through no fault of their own, the employees were prevented from having their jobs evaluated under the clerical administration scheme which opened in 2015.”  The Complainant representative also submitted that the employer had stated that “it was accepted that the individuals should have been aligned to the admin grade and that had they been, they would have been encompassed in the clerical admin scheme of 2015.” 

The Complainant representative further submitted that a number of staff were upgraded in that 2015 process and that the effective date of implementation for staff whose post were regraded was the 1st January 2014 and that this included those staff whose posts were regraded to Grade VIII.

The Complainant representative submitted that the Complainant should not suffer any loss as a result of the mal-administration of the matter at the hands of the Respondent and that the Respondent had acknowledged that he should have been encompassed in the aforementioned scheme. 

The Complainant representative outlined that extensive discussions followed and concluded in agreement between the union and the Respondent that there would be an ad hoc independent job evaluation process to resolve the issue, that it was accepted that only two individuals in similar situations, which included the Complainant, would be covered by this process and that the findings of the process would not have any further ramifications or implications for anyone other than those two individuals.  The Complainants’ representative submitted that there were significant delays experienced in putting that process in place, some three years, but that eventually it was agreed to appoint an independent external person to carry out the impartial job evaluation process and it was understood that the decision arising from that job evaluation process would be binding on both parties.  The representative also confirmed that there was no agreement regarding date of implementation or indeed retrospection of findings in relation to the two individuals concerned.  The representative submitted that discussions and engagements on those two individuals were confined to the members in questions and separate and distinct to discussions that were ongoing on the general job evaluation process for the Respondent organisation for 2020 and that those two matters would have no bearing on each other.  The representative submitted that the process was carried out and the recommendations and decision of the independent job evaluation expert was issued in March 2020.  The Complainant representative submitted that the decision of the independent evaluator was to regularise the Complainant at Grade VIII level, recognising that it was the appropriate level to reflect the roles and responsibilities of the position held.  That decision was accepted by both the Respondent and the union. 

The Complainant representative submitted that following the employers non-implementation of the collective agreement, the union sought to refer the matter to conciliation, however the employer refused to engage in that process on foot of advice from the Department who also refused to engage.  The union pointed out that they must be able to carry out negotiations with employers and take outcomes reached on face value to preserve the integrity of the employer/employee relationship and to allow for continuity of the current IR processes and mechanisms that exist.  In the circumstances, the union representative submitted that they were forced to refer the matter for adjudication seeking that the employer implement the findings and adhere to the collective agreement.  In their submission, the union pointed out that they were seeking that the employer be held accountable for their actions that led to the scenario that the Complainant found themselves in and recognising the mal administration of the matter that resulted in that situation.  The Complainant representative wished to point out that the member, through no fault of his own, had found himself carrying out roles and responsibilities that he was not appropriately recognised for or paid for and that he had suffered at the hands of the employer over the years as error after error and delay after delay was made in seeking to resolve the matter.  In the context of all the foregoing the Complainant representative asked that the Adjudication Officer find that the outcome of the evaluation should be implemented in a manner that ensures that the member suffered no loss as a result of the mismanagement of his situation over the years and that he should receive no less than had he been processed through the 2015 scheme. 

The Respondent submitted that the organisation was established on the 1st January 2014 bringing together some 4,000 staff who had previously been employed in three other public service organisations.  In 2015 the clerical administrative review was opened which allowed for those staff working within clerical admin grades to put forward their role for evaluation.  The terms of reference for the process only allowed administration grades to be evaluated.  As a result, the Complainant was not included in the process as he was not aligned to clerical admin grades; albeit it was accepted that he was carrying out duties and responsibilities aligned to the grade that he was being paid at.  As a consequence, he continued to be aligned to the grade assigned but was aligned to administrative duties. 

The Respondent submitted that in 2012 the Complainant was assigned to a Business Manager role on his existing terms and conditions and that prior to that time he had been a Social Care Manager in a residential setting.  The Respondent also submitted that:

·         In July 2015 the Complainant made a submission to have his role evaluated under the clerical admin review

·         In August 2016 he was advised that he would not be encompassed by the process as he was aligned to the terms and conditions of Social Care Manager

·         In June 2018 the Complainant and his trade union representative were advised that there was no evaluation scheme open to address his request for job evaluation.

·         In July 2018 agreement was reached between Forsa Trade Union and National HR to set up a scheme for consideration of posts that were attached to administrative roles where the employees carried terms and conditions of a clinical grade and it was further agreed that this scheme would extend beyond grade VI level.

·         In April 2019 the Complainant submitted a grievance to his Line Manager in relation to the situation and an external party was appointed to hear the grievance

·         In July 2019 that external party issued their finding in relation to the grievance which was that the Complainant should be re-graded to Grade VII and subsequently be considered under the job evaluation scheme once it was extended and implemented. The Respondent submitted that this was accepted by the Complainant.

·         The national discussions ultimately agreed that the job evaluation scheme would not be extended beyond grades III to VI but agreement was reached that the Respondent could progress an independent job evaluation for staff that were aligned to administrative roles but that carried clinical grades.

The Respondent further submitted that in considering the anomalies across the Respondent agency, there were two staff who it was agreed, should have a job evaluation process initiated outside of the job evaluation scheme for 3’s to 6’s.  It was accepted by the Respondent that through no fault of his own, the Complainant was prevented from his job evaluated under the clerical administrative scheme which opened in 2015 and closed in 2018.  It was also accepted by the Respondent that the Complainant was not carrying out duties of a Social Care Manager.  It was also accepted that had the Complainant been aligned to an administrative grade between the period of 2015 to 2018, he would have been encompassed in the clerical admin review which had concluded.  It was also identified and agreed between the Respondent and the trade union that the individuals concerned required to have their jobs evaluated and it was accepted by the union that this would not give rise to further claims. 

The Respondent outlined that they identified an experienced independent evaluator to carry out the evaluations and this appointment was agreed with the trade union.  The evaluations commenced in quarter 1 of 2020 and the report issued to the Respondent on the 25th March 2020 recommending that Complainant carried out duties that were equivalent to Grade VIII level.  As a result, sanction was sought from the Department to implement the recommendation as per the governing legislation for the Respondent organisation, however the sanction was not granted. 

In conclusion the Respondent submitted that they entered the process with the Complainant and the trade union in good faith owing to the particular set of circumstances already outlined.  The Respondent acknowledged that there is an employer/employee relationship in this case, however owing to the organisations’ governing legislation, they submitted that they must have the consent of the Minister in conjunction with the Minister for Expenditure and Reform, to implement the recommendations of the job evaluation process.  The Respondent submitted that they had requested sanction to implement the recommendation and further requested the Department to be part of the conciliation process to address the matter and both requests were not granted by the Department.  In those circumstances the Respondent submitted that they cannot now implement the recommendation pertaining to the independent job evaluation process. 

I noted that the parties were in agreement in relation to the sequence of events that led to this case being submitted to the WRC and in relation to the role and responsibility of the Complainant. 

I noted that

·         It was accepted by both parties that the Complainant is and has been carrying out duties above and beyond the level at which he is currently graded

·         He was remunerated on a clinical/professional grade at the time of the clerical admin evaluation process and this was not appropriate to the duties carried out

·         The job evaluation recommendation/finding was accepted by both parties and both parties agreed that it is the correct remuneration for the work being carried out. 

·         Both parties agreed that the job evaluation outcome would have been implemented but for the failure to receive sanction from the relevant Government Department(s). 

In considering this matter I must take into account the frustration of the Complainant but also the commitment of the Complainant in continuing to provide a service through, what has been an exceptionally lengthy process.  I must also recognise that the Respondent cannot make a decision in isolation from the Department given the governing legislation for the Respondent organisation.  I must also acknowledge the efforts of both the trade union and the employer side in seeking to find a fair and reasonable resolution of this matter and in continuing to work within the boundaries of the recognised industrial relations machinery of the state despite external interferences.

I am dismayed at the response of the Department to this situation, both in terms of their response to the Complainant’s position and in terms of their advice to the Respondent to not attend at conciliation.  It is, in my view, highly inappropriate of any state body to seek to undermine processes put in place by the state to maintain industrial harmony and the Department would do well to remember that both parties have an obligation to conduct business in such a way that it is conducive to a positive industrial relations climate. 

This is a case where both parties accept that the Complainant is inappropriately graded, where an agreed evaluation process has been undertaken by an experienced independent evaluator and where all parties accepted the outcome of that evaluation process.  Both parties, the Respondent and the trade union representing the Complainant, have reached agreement that the outcome of this evaluation process will have no further implications for any other staff in the organisation or indeed within the wider Health Services.  In this context, it is grossly unfair and unreasonable of the Department to withhold sanction. 

It is also evident to me that both the Complainant and the Respondent are at one in their view that the Complainant should have been included in the previous job evaluation process, that it was a management error that prevented his inclusion and that all those staff regraded to grade VIII level through that previous process received sanction for the implementation of their revised grading.

It is therefore my finding that this case should now be addressed by the Department and by the Respondent in the following way:

·         That the Department should issue sanction for the implementation of the outcome of job evaluation of the Complainant’s position and that the effective date of that implementation should be the 1st January 2014 in line with all other staff who were dealt with arising from the 2015 process. 

 I recommend that the worker is entitled to have his post regularised at Grade VIII level and that this should be implemented immediately and with effect from the 1st January 2014.  I also recommend that the agreement between the Respondent and the Complainants’ trade union, relating to the non-application of this arrangement to any other employee other than the two staff involved in the second job evaluation process, be adhered to. 

Industrial relations, job evaluation