Recommendation
Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00036928
Parties:
| Employee | Employer |
Anonymised Parties | A Manager | A Media Business |
Representatives | Self-represented | Fieldfisher LLP Solicitors |
Dispute:
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-00048281-001 | 23/01/2022 |
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Date of Hearing: 13/02/2023
Procedure:
In accordance with section 13 of the Industrial Relations Act 1969 (as amended), this dispute was assigned to me by the Director General. At a hearing on February 13th 2023, I made enquiries and gave the parties an opportunity to be heard and to put forward their respective positions in relation to the dispute.
The employee represented himself and the employer was represented by Mr Barry Walsh of Fieldfisher LLP Solicitors. Mr Craig Farrar attended with Mr Walsh. A HR Manager attended to provide a background to the dispute from the employer’s perspective.
As the subject matter is a dispute under section 13 of the Industrial Relations Act 1969, the hearing took place in private and the parties are not named, but are referred to as “the employee” and “the employer.”
Background:
In January 2022, the employee transferred to a new employer in accordance with the provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Transfer Regulations”). This dispute is against his former employer, the transferor. The employee joined the transferor organisation in May 2002. On the date he transferred to his new employer, he was a manager at the top level of the manager’s grade. In March 2017, almost five years before the transfer, the employee took up a new role. The grade for the new role was the same as the grade he occupied; however, in recognition of the responsibilities associated with the new job, compared to his current job, he was given an annual allowance of €6,000. A letter of June 2017 from a member of the HR department states that the allowance was “fixed for 2 years” and was “non-pensionable and non-ranking.” The employee’s case is that this is not what he agreed when he accepted the job and he is seeking an increase in the allowance and for it to be included in his pensionable pay. He is also seeking an increase in pay in recognition of an additional responsibility associated with his new role with effect from March 2017. The employer’s position is that the allowance was always intended to be non-pensionable and that it would be very unusual for the employer’s organisation to pay a pensionable allowance. Concession of this claim would have a serious financial impact across the organisation and could potentially have a detrimental effect on the employer’s pension scheme. |
Summary of Employee’s Case:
It is the employee’s case that, in 2017, he accepted a new role offered by his employer and he considered this a sign of their support for him following an investigation into a complaint of bullying. His position is he was “seconded” to the new role and that he agreed to take it on for two years, after which, he said that he understood that he could return to his former job. At the hearing of this dispute, the employee described the difficulties he encountered when he moved to the new job. For reasons of confidentiality, I do not intend to outline the details here, but I accept that he had some challenges to contend with. The employee said that, without his agreement, when he took up the new role, he was given an additional responsibility, which, in his view, should have resulted in additional pay. In early 2019, the employee’s former job was advertised and a new person was appointed on a fixed-term basis for three years. He said that it became apparent then that the employer did not intend that he would return to his previous role and he said that, for the next two years, he used his best endeavours to achieve a fair and equitable agreement. Due to the focus required to manage his day-to-day work, the employee said that he probably “took his eye of the ball” and didn’t pay attention to his own issues. He claims that, 1. His former employer reneged on agreements regarding his “secondment” in 2017; 2. He was not permitted to return to his previous role; 3. He was improperly transferred to his current employer; 4. He has suffered a financial disadvantage; 5. His terms and conditions continue to be eroded by his new employer. The employee requested that I find that his former employer should have given him the option of returning to the role he occupied up to March 2017. He also claims that, considering the extra responsibility he took on, his former employer should have engaged in a review of his allowance and pay. He claims that, if the employer decided that he should continue in his post-March 2017 role, his allowance should have been increased and included in his pensionable pay. As the outcome from this investigation, the employee requested that I recommend that his former employer should retrospectively agree to increase his allowance by 6% and include it in his pensionable pay. In recognition of his additional responsibility, he is seeking a recommendation that he should receive an increase of €10,000 and an acknowledgement that his contract is more senior than the top level of the management grade. He requested that the employer accept these recommendations and convey them to his current employer. |
Summary of Employer’s Case:
It is the employer’s case that the allowance of €6,000 paid to the employee with effect from March 2017 was always intended to be non-pensionable and not part of his salary. Mr Walsh referred to the letter of appointment, which clearly states that the allowance is non-pensionable. Mr Walsh said that it would be very unusual for an allowance to be pensionable. The employee’s repeated requests for the allowance to be included in his salary were never accepted by the employer and he argued that there was no basis for the employee to continue to persist in that regard or to believe that he would get a different answer every time he asked the same question. Mr Walsh submitted that, as there was no agreement with the employee for what he sought, there can be no reneging on an agreement. Mr Walsh submitted that the employee is aware how the grievance procedure operates in the organisation where he worked. He was engaged for almost two years in meetings on the transfer process. Mr Walsh argued that the issues raised by the employee are “excessively historical,” dating back to 2017 and 2018 and that he never raised a grievance regarding his claim before he transferred to his new employer in January 2022. |
Conclusions:
I have considered the submissions made by both parties at the hearing of this matter and I have reviewed the comprehensive documents provided to me in advance of the hearing. It is a concern that the employee submitted this grievance for adjudication on January 23rd 2022, when his transfer to his new employer was effective from January 24th. Discussions had taken place with the affected employees and their representative bodies throughout 2021, and there was nothing to prevent the employee pursuing this matter through the grievance procedure in advance of the transfer. An employee seeking an investigation under section 13 of the Industrial Relations Act is generally required to exhaust the grievance procedures at the level of the enterprise, and in most circumstances, an adjudicator or the Labour Court would not “insert itself into a procedural process where the dispute procedures have not been exhausted.” (See the determination of the Labour Court in Gregory Geoghegan trading as TAPS v a Worker[1] in this regard.) Due to the delay hearing this case as a result of restrictions imposed at the WRC during Covid-19, and, in acknowledgement of the very detailed submissions provided by both sides in this case, I consider it appropriate to make a recommendation. The employee claims that he moved to a new role in March 2017 on foot of a secondment arrangement for two years. In support of this claim, he referred to an email dated March 14th 2017, between two members of the HR department which was in his personnel file when he transferred to his new employer. In the email, one member of the HR team asked a colleague to draft a contract for the employee, based on a 12-month assignment, to be reviewed after 10 months, and with certain key performance indicators to be agreed. Some of the text in the email is missing, but it appears that the role is to be subject to a further appointment or renewal and that the employee would revert to his previous role if his new contract was not renewed. There is no reference in this email to an allowance of €6,000. Two weeks later, on March 27th, following a discussion with his managers on March 24th 2017, the employee sent an email to them in which he confirmed that he is “…happy to accept a transfer from my current role ….to the equivalent role … I understand that my terms and conditions of employment remain the same as the role I will be taking on is equivalent to my current substantive role… I note that, in addition to my salary I will be paid an allowance of €6,000 per annum which will be fixed for two years, after which time it will be reviewed.” It is apparent from this email that the employee agreed to transfer to his new role on a permanent basis, and that the reference to two years is a reference to the allowance of €6,000, which was to be fixed for two years. Around eight weeks later, on June 1st 2017, a member of the HR department sent a letter to the employee “to formalise the changes agreed” between him and his managers. The letter states as follows: “Effective from March 29th 2017, I can confirm your transfer as Departmental Manager Grade 1 to the role of …. “You will receive an additional responsibilities allowance fixed for 2 years at a rate equivalent to a gross annual amount of €6,000, subject to appropriate statutory deductions and payable fortnightly which is non-pensionable and non-ranking.” By December 2017, the allowance had not been paid and the employee wrote to the HR department complaining that it had not been put through. He said that “it was agreed for two years after which it would be reviewed with a view to an increase.” There is no mention of it being included as pensionable pay, or that his transfer was also for two years. In February 2019, when he had been in his new role for almost two years, the employee’s previous job was advertised. He did not raise a concern about this, and, while he looked for a copy of the job specification, he did not ask to return to this former job. In June 2019, the employee wrote to his manager acknowledging that the role he transferred to in March 2017 is “now permanent and my de facto substantive role…” He sought a review of the allowance of €6,000 and for it to be included in his salary as pensionable pay. He also sought a pay increase in recognition of an additional responsibility not discussed with him when he took on the job in March 2017. In August and December 2019 and in October 2020, the employee continued to pursue his claim informally with members of the HR department. He was informed that his request would not be approved. The employer’s position was confirmed again in emails from the Head of HR on August 27th and October 8th 2021. Conclusion I am satisfied that the intention of the employer in March 2017 was that the employee would transfer to his new role on his salary at the time, plus a non-pensionable allowance of €6,000. I do not accept that he was seconded for two years and none of the correspondence suggests this. I accept that there was a commitment to review the allowance in two years, and I understand that it wasn’t reviewed because salary increases were on hold in 2019. For the employee’s grade, increases were not revived until June 2021, when the employee received a back-dated salary increase; however, the allowance was not increased. I do not accept that the employee was not permitted to return to his old job. When that job was advertised as a vacancy, he made no enquiries about going back to it. In June 2019, without demurring, he referred to his new role as “permanent and de facto.” I do not accept that there was anything improper in the employee’s transfer to his new employer. More than 75 employees transferred, and no complaint has been raised regarding a breach of the Transfer Regulations. Prior to the transfer, the employee had adequate opportunity to raise any concerns he had regarding the transfer through his representative group. In an email to a senior manager in February 2021, he said that he had attended “a number of Oversight, HR and Working Group meetings.” However, apart from a request to engage an independent body to review how the grades in the transferor’s organisation matched those in the transferee’s, he did not raise a formal complaint about how the transfer was being implemented. I am satisfied that the employee is on the correct rate of pay for his job. The previous incumbent was on the same pay grade, but without the additional allowance. I do not accept that he suffered a financial disadvantage arising from the transfer, as he is on the same salary that he earned with the transferor, and he continues to be eligible for increments. At the hearing, he argued that he should be on a higher management grade, which would give him access to increases above the top point of his current pay scale, which is around €105,000. A claim for regrading requires a job-evaluation exercise which the employee did not request at any stage after he took up his new role in March 2017. It is the employee’s case that his “terms and conditions continue to be eroded by his new employer.” As he transferred with his terms and conditions protected, any erosion of those terms is a serious matter and must be raised with the transferee. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I have considered the employee’s grievance and the response of his former employer. I recommend that the employer takes no further action regarding the issues raised by the employee in the form he sent to the WRC on January 23rd 2022 and the further issues raised at the hearing on February 13th 2023. |
Dated: 6th April 2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Transfer to a new role, allowance, additional responsibilities |
[1] Gregory Geoghegan trading as TAPS v a Worker, INT1014