Complainant

Respondent

Anonymised Parties

A Senior Manager

A Healthcare Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00044062-001

14.05.21

The Complainant transferred to the employment of the Respondent in July 2013 where she was assigned to a position of Area Senior Childcare Officer.  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 was employed with the Respondent since 1995 as an Area Senior Childcare Officer.  This position held a significant role on the Senior Management team.  The primary purpose of the role was to meet legislative requirements under Freedom of Information/Data Protection and also to work as Liaison Person with both internal and external agencies including An Garda Síochána, Office of the Information Commissioner, Offices of the Ombudsman, States Claim Agency, Legal Services and to manage the risk register and act as Liaison person with NRP and with families subject to reviews.  In May 2014, the Area Manager requested a business case from the Complainant for forwarding to the HR Department, to have her role aligned onto the Grade 8 salary to appropriately recognise the work she was doing.  Her salary was personal to holder, which was very close to point 4 on the Grade 8 scale and progression on the scale was being sought by way of the business case.

The Area Manager was advised by HR to submit a request for regularisation for the complainant under HSE circular 17/2013, which she did on the 24th June 2014.  Neither the Area Manager nor the Complainant had a response to the request for regularisation despite numerous emails being sent requesting a response by the Area Manager, by the Regional Director and by the Complainant.  In January 2016, the Complainant engaged the support of the union who in turn sought clarity from the HR Department.

In May 2016 the union informed the Complainant that her request for regularisation had been refused, that the employer had never brought this to her or her line manager’s attention for some two years after the forms had been submitted, only advising the union on same when they enquired.  The Complainant withdrew from WRC adjudication on two occasions in good faith, the first time when she was promised an appeal under the regularisation which took a further year to take place in July 2017.  The outcome of that appeal was that a job evaluation take place which was not forthcoming, hence the second application to the WRC which was withdrawn with the promise of said job evaluation in July 2018.  Despite the case being withdrawn again on the basis of this promise, the actual job evaluation did not take place until March 2020, almost two years later.  The Respondent and the union agreed that the independent impartial job evaluation would be carried out by an independent job evaluation expert.  The thorough evaluation process was carried out and a decision was issued and at the date of submission of this complaint, the Complainant was awaiting implementation of same.

The employer sought sanction for the implementation of the decision from the appropriate Department.  In their submission to the Department, they clearly outlined to the Department that the Complainants’ evaluation was omitted from a clerical administrative review which took place in 2015 as part of the transfer of undertakings from the original employer to the current employer.  It also stated that “other than a technical issue of their grade code would have been evaluated in the previous clerical administrative scheme 2015”.   It is further stated in that business case that “it was accepted that through no fault of their own, these two employees were prevented from having their jobs evaluated under the clerical admin review which opened in 2015 and closed in 2018”.  “It is also clearly accepted that if they were aligned to the admin grade, they would have been encompassed in the clerical admin review in 2015.  This was a technical anomaly, not of their making and they suffered significant delays as a result”. 

Despite the extremely strong arguments laid out in the business case by the Respondent, the fact that the member found herself in this position due to mal administration suffered at the hands of the Respondent over the years and the fact that the Respondent knowingly created a situation where the member was discharging duties significantly beyond the remit of her substantive post, the Department refused to sanction the post, meaning in turn that the employer had not implemented the collective agreement reached.  The union sought to refer the matter of the implementation to conciliation in a bid to resolve the issue.  However, the employer, acting on the instructions of the Department, refused to attend.  The Complainants’ representative submitted that the non- implementation of the collective agreement by the employer on foot of instructions from the Department, has significant implications for the union in a wider context.  They submitted that the employer/employee relationship lies between the Respondent and the Complainant and that the Complainant deals directly with their employer on such issues as is the norm and the union (as the employee representative) also deals with the employer directly, again as is the norm.  The employer has the responsibility; it is with the employer that any and all dealings have been done, for the Department to get involved at this point and then be allowed “pull the rug from a collective agreement, without them having any involvement in the process to date, calls into serious question the ability of the union to conduct business with the employer and to take anything they say at face value”.  The Complainants’ representative submitted that the very nature of a positive industrial relations environment turns on the parties’ ability to engage with each other in an open and transparent manner, and that this will simply be no longer feasible if the Department has a veto on every agreement reached. 

The Complainants’ representative submitted that the employer has created a situation whereby members are discharging roles and responsibilities that are far in advance of their substantive posts.  The roles that they currently hold are not recognised appropriately, a position that has been conceded by the employer.  The Complainants’ representative submitted that this was recognised and agreed by the Respondent as far back as 2014 when they made initial efforts to address the matter.  They submitted that those efforts were unsuccessful on foot of errors and omissions by the Respondent and that it was no fault of the Complainant.  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”.  It was also stated by the employer 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 submitted that a number of staff were upgraded in that scheme and that the effective date of implementation was the 1st January 2014 and that this would have included those staff that were at level 8.  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 they should have been encompassed in the aforementioned scheme. 

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.  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 recommendation 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 8 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 are 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 her own, had found herself carrying out roles and responsibilities that she was not appropriately recognised for or paid for and that she 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 outcomes of the evaluation should be implemented in a manner that ensures that the member suffered no loss as a result of the mismanagement of their situation over the years and that they should receive no less than had they 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 she was not aligned to clerical admin grades; albeit it was accepted that she was carrying out duties and responsibilities aligned to the administrative grade.  As a consequence she continued to be aligned to the grade assigned but was aligned to administrative duties. 

The Respondent submitted that the Complainant’s salary was made up of the Social Worker Team Leader Salary scale and 2 allowances (dual responsibility and acting allowance) to remunerate her for the roles and responsibilities assigned.  It was accepted by the Respondent that through no fault of her own, the Complainant was prevented from having her 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 or a Social Work Team Leader, that she should be aligned to an administrative grade and that had the Complainant been aligned to an administrative grade between the period of 2015 to 2018, she would have been encompassed in the clerical admin review which had concluded. 

In 2014 the Complainant in consultation and agreement with line management an application was put forward for regularisation under HSE circular 17 of 2013 which arose from the Haddington Road Agreement.  This application was later refused and appealed in July 2017.  The appeal was heard and not upheld however a recommendation from an external independent assessor was made that the Complainants’ job should be evaluated.  In July 2018 agreement was reached between HR and the trade union that a scheme would be looked at for staff who were attached to administrative roles but carried the terms and conditions of a clinical role.  The only staff to be encompassed in this would be agreed to and would be due to historical arrangements arising.  The Respondent submitted that National Employee Relations were tasked by the Director of HR with identifying a suitable provider to consider job evaluations outside of grade 3’s to grade 6’s but this process was never finalised and implemented.  The Respondent further submitted that from November 2019 to December 2019, engagement took place between the trade union and the HR Department regarding the job evaluation process, including the opening of the job evaluation scheme, the extension of the scheme and addressing historical anomalies within the agency.  Agreement was reached that a job evaluation would be extended beyond that of grade 3 to 6, however the agency would progress an independent job evaluation for staff that were aligned to administrative roles but carried grades that were clinical.  It was further agreed between HR and the trade union, that the Complainant would be encompassed in this process as she was carrying out administrative duties and responsibilities as opposed to clinical duties.  In February 2020, the job evaluation process commenced following the appointment of the independent evaluator and in April 2020 the job evaluation report issued confirming that the duties and responsibilities assigned to the Complainant were equivalent to that of grade 8.  The Respondent provided background information on the previous job evaluation scheme as follows:

·       Prior to the establishment of the agency, a technical group was established, chaired by Ms Joan Carmichael. 

·       There were representatives from the three agencies which were coming together and a representative from the INO representing the staff panel and a representative from the Department of Health and the DCEDIY. 

·       The group established a framework agreement which confirmed that roles and responsibilities of clerical admin staff would be reviewed.  As a result, a clerical admin review was progressed for grades up to an including grade 8.

·       A number of staff were upgraded under the process and the effective date for all of those upgrades was 1st January 2014.  The scheme closed completely following appeals in 2018. The Complainant was not considered clerical admin in so far as the grade code attaching to their post was not that of a clerical admin grade and so they were excluded from applying for the clerical admin review process.

It was accepted by both the Respondent and the union that this was an oversight in the clerical admin review terms of reference and that those anomalies should have been addressed at the time of the scheme when it was established and certainly prior to it being closed.  As part of that clerical admin review, where there were upgrades to grade 8 level recommended by the review panel, sanction was requested by the organisation from the Department.  In all of those cases the Respondent submitted that the sanction was granted for any staff that were to be upgraded to grade 8 as part of the process. 

The Respondent submitted that it was 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 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 8 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 she is currently graded

·       She is remunerated on a clinical/professional grade which is not appropriate to the duties carried out

·       The job evaluation recommendation/finding was accepted by both parties and that 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 had the Complainant should have been included in the previous job evaluation process, that it was a management error that prevented her 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 her post regularised at grade 8 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