Worker

Employer

Anonymised Parties

A Clinical Psychologist

A Health Body

Representatives

Ger Kennedy, SIPTU

Conor White, Comyn Kelleher Tobin

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00045860-002

27/08/2021

This dispute was submitted to the WRC by the Worker himself on 27 August 2021. The Worker, a Clinical Psychologist was represented by his Union, who filed a comprehensive submission in the case for the purpose of the hearing.

Concurrent claims under Equality Legislation and Protected Disclosure Legislation were withdrawn prehearing.

The claim surrounds a contention of career progression in the Adult Mental Health services and a collision with placings from a local transfer panel.

The Employer in the case has rejected the claim and was represented by Conor White, CKT Solicitors and the local Human Resource Team.  In November 2022, The Employer also filed a comprehensive submission. The case was postponed on that occasion.

The case came for private hearing under the IR Act alone on February 13, 2023. The Parties have been anonymised.

At the conclusion of the hearing, I sought some further information from the Union on dates of the workers sick leave and correspondence on confirmation of panel placing.

This information was received at WRC on 24 February 2023.

The Union outlined that the Worker has experienced a distinct career disadvantage by the way Senior Psychologist Posts were filled in the Adult Mental Health Services over a four-year period.

He has contended that he has lost salary, access to further career advancement through his being overtaken for appointment to the role that he was interviewed and panelled for in 2017.

The Union has also raised a dissatisfaction with the extended time invested in the local grievance procedure without success in July 2021.

I raised the prospect of whether this claim was limited by the application of section 13(2) of the Act (body of workers) in response to the Employer Preliminary Issue.

The Union disputed the limitation and argued that the employer had not objected to the claim earlier. (Reference Limerick County Council at the LC)

The Worker’s submission was written in the first person.

The Worker was placed 4th on a National Panel for Senior Psychologists in February 2017. By July, he had risen to 2nd place, following appointments from the panel. The panel was home to 3 grades of Psychologist. The Union shared the notification of panel placing dated March 2017.

1 Basic Grade (Worker’s grade in 2017)

2 Senior Grade

3 Principal Grade

The Union confirmed at first, that no local or national transfer policy was in existence for Psychologists in any grading.

Later in the hearing, the Union remarked that the worker is currently on a new panel for mobility purposes (max 45 km). They said that nobody informed the worker of a local panel and even now, he is not a member of that panel.

The Union contended that the Worker held first call/ priority boarding over all vacant senior psychologists’ positions because of this placing.

in May 2017, A permanent position as Senior Psychologist in Older Adult Mental Health services went to expressions of interest from this National Panel. The Worker at first expressed an interest but then declined as the pro-offered clinic field was not his preference. This preference was in Adult Mental Health and given his high ranking on the national panel he anticipated an early offer in that field.

By chance, in January 2018, the Worker discovered that the position under offer in May 2017 had been accepted on June 8, 2017, but shortly afterwards had been transformed to a General Adult Mental Health post in a City Service, to address a requirement to lead a Therapeutic programme. He maintained that this had occurred prior to the candidate serving time in the “Older Person “position.

The Worker contended that he had been slighted, as this post ought to have been offered through the national panel. He made a Protected Disclosure in 2019.

The Worker referred to a Report secured through his previous complaint under Protected Disclosure Act 2014(not before the WRC). He said this report vindicated his position that he would have accepted the Senior Post if it had been titled “Adult “rather than “Old Age “

The Worker argued that a lull followed where no permanent contract senior positions were advertised in the County Services until April 2021.

He had tried to achieve an upgrade of a position in North Cork, but this was declined.

The Worker commenced a temporary senior position in February 2021 and has been permanently appointed since September 2021. He pointed to missed opportunities for pay and career advancement as a result.

As redress was not capable of realisation through the protected disclosure, he filed a grievance on 10 February 2020 as efforts to resolve the matter locally were unsuccessful.

The grievance sought to address being overlooked for the Adult Mental Health Post from 2017 in addition to an obstruction from a college based clinical opportunity.

In March 2020, the Worker observed an inter county lateral transfer by a colleague senior psychologist. Once more, he observed that he would have accepted this position if offered.

Another Intra county later transfer followed in September 2020.

While awaiting his grievance hearing, the worker was denied progression onto a group facilitation opportunity on a Doctoral Programme. He contended he was blocked in accessing this by a line manager and the group went ahead without his participation.

Stage one Grievance Procedure outcome issued on December 22, 2022.

1 A request to upgrade a staff grade post was denied.

2 In the absence of a transfer panel policy “Line Managers make local decisions in the best interest of service delivery “

3 A transfer panel policy for psychologists was appropriate to collective bargaining and not an individual grievance.

4 There was no evidence of the worker being disadvantaged.

The grievance was not upheld. An appeal followed.

The Union took issue with the proposed convenor of stage 2 grievance. The process eventually got underway with a difference convenor, a Clinical Director of Mental Health Services on May 7, 2021

On July 9, 2021, Stage 2 grievance was not upheld on appeal.

1         Both posts were subject to the correct process of offer in 2017

2         The intra and inter county transfers were within the custom and practice of transfer.

3         The transformation in from older person to adult post was recognised but was justified as safeguarding a therapy service.

4         The Grievance made a comment on the process surrounding the Clinical Psychologist who transferred from the older service to the Adult Post. She recommended that in future such an opportunity should be “sent to all senior clinical psychologist within the Community Mental Health services “to enable expression of interest.

5         She concluded by distinguishing the worker in this case from the role of Senior Psychologist at that time and therefore, not impacted.

The Worker recorded a dissatisfaction with that outcome, which he contended was divergent to the Psychological Society of Irelands recommendations on best practice.

The Worker argued that he had been denied equality of opportunity and had been held back in his career progression.

He feels particularly aggrieved at the apparent ease of transfer which occurred in three positions at senior level, which he remained fixed at the highest ranking of a national panel.

The Worker achieved some stability by appointment to a Senior position and eventual uptake of the group facilitation. He argued that had he secured the “transformed position in May 2017 “he would have advanced to a much-enhanced career stage which would have facilitated his capacity to apply for higher positions.

The Worker was compelled to avail of extended sick leave for 8 weeks in 2021 as the matter began to affect him greatly. He believed that he had been wrongly categorised as a troublemaker in pursuance of a particular post.

The Union summarised the financial loss as €66,000 (differential in the two grades August 2017 -May 2021) and sought a Recommendation for the accrued losses. He also sought a Recommendation on his being free to compete for Psychology Managers posts, due to a delay in eligibility from May 2020, i.e., 3 years.

He signalled that he wished the dispute to end.

The Employer operates a Health service and has denied the claim raised.

Preliminary Issue: Section 13(2) of the Industrial Relations Act, 1969 (Body of Workers)

The Employer Representative submitted that the issues raised here were not stand-alone issues and the Adjudicator did not have jurisdiction to progress the claim.

“That is because his complaint in fact relates to a body of workers and any recommendation is likely to have wider implications, beyond the (Worker) himself “

Shannon Airport Authority v A worker AD 1385.

The Employer submitted that the matter clearly related to a body of workers and was respectfully outside of the Adjudicator jurisdiction.

Substantive Case:

The Employer outlined that 100 Psychologists were employed in the area referred to in this case. He submitted that Local Management held a discretion to redeploy according to local service needs.

In submitting a chronology of events which occurred in the case, the Employer accepted that the Worker was placed at 4th placing on the national recruitment panel in March 2017.

A Post first designated as Older Care was drawn down from the panel, offered to the complainant but ultimately refused. The position was then reconfigured to one in Adult Care to protect an aspect of the service. The Employer emphasised the low rate of referral to referral to Older Care Psychology.

The Employer accepted that the position first offered to the worker had been changed but it was not possible to change and offer to the worker in this case as the Panellist had accepted the position.

The Employer had endeavoured to explain the events to the worker through the operation of the grievance procedure, but no progress was made.

The Employer denied that the Worker had been cast as “an outlier “in the case and reminded the hearing that he had been appointed as Senior since May 2021, prior to the submission of this case to WRC.

The Human Resource Manager clarified that the process surrounding an offer being released from the National panel was triggered by a “job order “. She outlined the procedural pathway initiated by the expression of interest and culminating in Head of Service sign off.

She indicated that changes were imminent to place recruitment back into the authority at local rather than national level.

She confirmed that a Panel is equivalent to a “Waiting Room “There was no means at the disposal of the Employer that would accommodate the worker to in essence “leapfrog “to a Principal position.

Ms Daly emphasised that local discretion is a very important consideration for the employer to satisfy humanitarian / medical / service needs at the service.

The Employer Representative outlined the procedural pathway of local management engagement which commenced on April 10, 2019. They contended that the impact of covid 19 pandemic contributed to the delay in processing the grievance. The Employer had endeavoured to explain to the worker the evolution of the remodelling of the Senior Post, but he had not accepted the explanation.

The Employer argued that the Worker had skipped stage 3 of the grievance procedure.

In conclusion, the Employer acknowledged that the Worker was dissatisfied with the trajectory of posts which he had described as by passing him. However, the Employer did not accept that he was disadvantaged as he did not hold the skill set necessary for the transfigured position in 2017/8.

The Employer contends that they supported the Workers career progression, and he remained on the national panel. The Worker had refrained from a number of invitations to act for senior managers in different locations.

The Employer opposed the Union claim for compensation. They requested some understanding of their need to run the service.

The Employer confirmed that SIPTU was not the majority Union representing Psychologists.

19 Appointments had been made in Psychology from the 2017 panel and the panel expired in December 2021.

The Employer argued that there was no merit in the dispute.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

I listened carefully to both parties at hearing.

I wish to thank both sets of representatives who brought a necessary objectivity to the process, while also accepting that both parties felt strongly that they were correct in their views.

Preliminary Issue:

The topic of jurisdiction in a case taken under the Industrial Relations Act 1969 is a live issue in this case. Section 13 serves as a sorting house for whether a dispute is capable of being heard under section 13(1) or whether it is precluded by the application of the clause “body of workers”.

It is the Individual rather than the group which is of immediate importance and relevance here.

The Chairman of the Labour Court, writing on behalf of the Court, explained the application of Section 13(2) very succinctly in the case of South Infirmary Victoria University Hospital and A Worker LCR 22291, November 2020, when he commented in a claim taken by a Head of Department in anaesthesiology in relation to funding arrangements for his position. The Court in recognising the parties long established collective bargaining arrangements denied jurisdiction under Section 13(2) of the Act.  

“It is clear that any consideration of this trade dispute will have to address the national question of how a post is identified as having the criteria to be graded as HOD within the meaning of the party’s national agreement on the rate of pay for such a post. In addition, any such consideration would have to deal with the national question of mechanisms for appointment to such roles.

It is axiomatic that any decision issued by the Court in this matter has the potential to affect the criteria under which a post in the publicly funded hospital system qualifies as a Head of Department post within the meaning of the agreed pay scales and also to affect the selection mechanisms for appointment to such posts.

 It is common case that the issue of the criteria under which a post becomes a Head of Department Post is a matter for bargaining between the parties nationally and is not yet the subject of agreement. It is to be presumed that a national agreement for appointment of posts of Head of Department to be by election of peers would require a collective agreement also at national level in so far as such an arrangement would replace the existing national arrangements for competitive recruitment processes “

It has taken me some time to come to a decision in the matter of whether the worker is foiled by the body of workers clause in Section 13(2) in the case.

Rights commissioners. (Adjudicators also)

13.— (1) 

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

I have been requested to address this matter as a preliminary issue, but given that the parties were present and prepared, I heard both the preliminary and substantive case together.

The Employer in this case argued that this case had implications for a body of workers and the case should not progress. The Worker contended that he was raising this case as an individual and sought an Individualised Recommendation.

For my part, I have read and reviewed an enormous volume of documentation and correspondence in this case, which suggests at least that the issue is far more pluralistic than the Worker stated.

I say this because of the undated and unsigned position paper from a Psychologist Grouping which seeks to interpret best practice in recruitment practices.

In addition, I found the embers of a protected disclosure linked to recruitment practices.

I also found a flurry of inter party political correspondence which steered firmly into the global practice of recruitment at the employer body.

My understanding from many years of practice is that Recruitment at the Employer body was placed on a Statutory footing by The Public Service Management (Recruitment and Appointments) Act 2004, which provides the regulatory framework for fair, transparent, and merit-based recruitment and selection in the Irish public service. (Extract from web site) Yet the parties had not addressed the circumstances of this case via that umbrella body.

I listened carefully as the Employer explained that recruitment practices were in a period of transition as a large part of the practice was in the process of returning to the local domain.

I find that while this case was populated by a large dossier of inquiry, commentary, and scrutiny of the recruitment practices of the employer, the claim is not A Trade Dispute connected to the rates of pay of a body of workers.

Instead, I find that this is a claim regarding the placing of a candidate who accepted an initial posting as senior psychologist into a redesignated post in adult / specialist therapy posting, which the worker would have accepted had it been introduced to him as an Adult posting first day.

He contends that this has hampered his career progression as his position on the national panel gave him priority access to all vacancies in Senior Psychologists posts.

The Employer has firmly disputed this perception.

This is an individual grievance, albeit incompletely executed at local level.

It is a Trade Dispute on behalf of an individual worker and his employer.

Substantive Case:

As the Parties are both aware, trade disputes come to the WRC in order that an Adjudicator can consider both parties positions and if possible and if merit in found in a case, a Recommendation can be made on a possible resolution to the Parties for their active consideration, acceptance, or appeal onwards to the Labour Court.

 In this case, I am not about to engage in any armchair views on the recruitment principles operational in 2017 to May 2021, when the Worker secured a Senior position. I do not run the employer’s business.

Instead, I want to focus on the grievance raised.

Going back to the very beginning of the circumstances which led to the claim, I have noted that the worker was placed on a national panel for Senior Psychologists. The Union told me that this comprised psychologists at all levels as it was viewed as an enabler for mobility.

I wanted to understand what informed the workers unshakeable opinion that his position on the national panel permitted him priority boarding for all vacant Senior Psychology posts. The Employer spent some time helpfully explaining the operational challenges of filling positions from a number of measures, lateral transfers, transfers on personalised circumstances and from a national/ local panel.

I requested sight of the declaration of the Workers ranking on the March 2017 panel. I accept that he was ranked 4 and placed as suitable for appointment in Adult Psychology, one of the 5 domains listed, which quickly went to 2. Nowhere on this document, or on any other document placed before me (outside of the Psychologist position statement) did it generate grounds for a legitimate expectation that the worker could access all approved vacancies.

I accept that there was no national transfer panel for psychology. I accept that there did appear to be a local listing which allowed for voluntary lateral transfers outside of the 45km associated with the Public Sector Agreement. I accept the Employer argument that the worker was not eligible for lateral transfer into a Senior post when he had not been formally appointed into the Senior post in 2017/2018.

I reviewed stage 1 and 2 of the grievance procedure and found that these were indeed a concrete effort at seeking to explain that the Employer drew down a post under the heading of Older Care from the panel and due to service exigencies this was redesignated as an adult position.

I can understand that the worker was aggrieved that he had not taken a leap of faith into the Older Person Senior Post.

 As circumstances unfolded, this created a perhaps unanticipated opportunity to access the client population he was seeking himself.

Efforts to build a reciprocal Senior Position through upgrade were unsuccessful, causing the worker to drift towards “an outlier “viewpoint. He felt a distance between him and his Management Team that exists to the current day.

The Employer accepts that the post was redesignated but was unable to alter course as the panellist had accepted the position.

It is regrettable that this period was short on appointments to Senior posts in Adult Psychology as that lull has also added to the workers sense of grievance. The panel has expired since December 2021. 11 Adult Senior posts were appointed nationally from this panel and now there are 10 current vacancies locally.

I found that the Employer followed their own grievance procedure, up to including acceding to the workers request for a revision in the grievance stage 2 manager.

It was the worker who diverted to the WRC after he was unhappy with the outcome of stage 2 by the Clinical Director.

The Labour Court has consistently rejected that “skipping ahead “approach as a failure to exhaust internal procedures.

I can accept that the worker was very close to and living with his sense of grievance since early 2018. The record shows engagement with senior psychology managers, senior employer managers, grievance managers.

I can appreciate that the worker had a set outcome in mind, that of appointment to a Senior Post in Adult Psychology and he has reached this through a combination of temporary and permanent service since May 2021.

The grievance process did not recommend this approach and went a step further and concluded that the redesignation of the Older Person to Adult Post occurred within the parameters of an approved Senior post, not yet secured by the Worker. Therefore, his career was not affected.

For my part, I found that the Employer sought to act in the best interest of the service when they drew down the Older Person post, subsequently remodelled into an adult post.

I find that the worker may have to take some responsibility for his own decision not to advance in the offer of the older person position. I would like him to reflect on that. I appreciate that he could not be expected to “see around corners “.

It is not unusual that candidates for positions in civil/public consider and respond to appointment to posts incrementally and strategise i.e., they may take one bus, so to speak and hope to catch another to their eventual destination. This is known as a 2 or 3 step approach and in the absence of a national transfer panel, perhaps that’s how candidates operate in the main? That would explain the lateral transfers which occurred simultaneously with the circumstances of this case. It is also important to reflect that many people may have different and competing needs for accommodation in an employment area. An Employer is charged with this oversight daily.

I cannot conclude that the worker held an overall authority to access all declared vacancies at the employer body. His letter of notification of panel place did not communicate this executive authority.

However, I am not satisfied at the lack of clarity associated with the redesignation of the 2017/2018 Older Person/ Adult post. I accept that this disadvantaged the worker.

However, I am also conscious that time has passed in this case and the Worker has realised his goal to become a Senior.

I find that there is a defined sense of “exhaustion “on this matter by both sides, who continue to work together in the interest of providing an optimal service.

The worker has been constantly immersed in analysis of this issue for over 5 years now. The Employer has a keen eye on changes planned to return to a version of localised recruitment.

For my part, I find a shared blame in the origin of this grievance between the parties, which has been placed at a stand still since the worker departed the field without recourse to stage 3 of the grievance procedure, where Human Resources were to be charged with managing that end stage of the process.

I can accept that the worker had two months sick leave prior to submitting his complaint to WRC in August 2021 and that the complaint came in independent of the Union but supported by it.

I can accept that the Worker was frustrated by the longevity of the process, which was overtaken by the pandemic.

However, a vital stage was skipped by the worker.

I have a choice to send this back to the Employer in respect to the grievance procedural framework and in seeking not to make matters worse than they are.

However, I believe that there is really no point in that now and I would prefer to address the claim as a legacy of the covid pandemic and make a sensible, fair, and reasonable recommendation for consideration by both parties.

I find that enough time has been spent in retrospective analysis and insufficient time of planning for the future.

The Worker has told me that the redesignation of post in 2017/2018 has upset his career progression due to his need to have 3 years at Senior prior to being able to apply for Principal. The Worker has requested that I award him the differential of salary from 2017 onwards.

He has already resolved the professional academic grouping issue himself.

Having listened to both parties very carefully. I must conclude there is some merit in this dispute.

I would like to make the following recommendation to the parties.

1         The Worker should be allowed access whatever local panels are in place to aid lateral transfers within his grade of Senior Psychologist. He should receive an annual update on the operation of his placing until he is either transferred or promoted to a higher grade.

2         The Worker should commit to processing any further grievance strictly in accordance with the agreed grievance procedure and without confusing matters through over reliance on external scrutiny from parties not party to the employment contract.

3         The Worker should file a written submission to the Employer on suggestions for retention of Psychologists at the Employer Body within 4 weeks of this Recommendation. If required, he should work with the Employer on realisation of this goal.

4         The Employer should remove 4 weeks from the Workers sick leave record in the Summer of 2021 as I am satisfied that this sick leave was linked to his being overwhelmed in seeking to resolve the grievance, which was unduly delayed.

5         The Employer should revisit the workers incremental credit and enhance his incremental credit by one point from September 2021. This differential is in recognition of the lack of clarity on the redesignation of the Older Person position, while entirely well intentioned, caused an element of exclusion in the worker, that he has struggled to recover from.

This is a unique gesture particular to these unique set of circumstances and without precedent.

I make this Recommendation in the hope that the parties can be afforded closure on this period and to move forward to “now “while encompassing a saying from Gandhi.

“If I have the belief that I can do it. I shall surely acquire the capacity to do it, even if I may not have it at the beginning “

I wish the parties every success for the future and a parking of the past in this case.

The Worker should continue to plan his career and the Employer should welcome the delegation on recruitment they spoke about at hearing.

My Recommendation is in full and final settlement of all matters outstanding between the parties.

Grievance surrounding Career Progression