ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00034739
Parties:
| Worker | Employer |
Anonymised Parties | Social Care Worker | Public body |
Representatives | Trade Union Official | HR Manager |
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-00045753-001 | 20/08/2021 |
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Date of Hearing: 10/05/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The Worker seeks upgrading from Social Care Worker to Social Care Leader.
Summary of Workers Case:
The Worker is employed as a Social Care Worker and since 2015 she has performed duties of a higher grade without any remuneration for these duties. She has engaged with local management over a period of time seeking to be re-graded into the appropriate grade. It is argued that since transferring into the service she currently is in she has continued to cover duties that are consistent with nationally agreed Social Care Leader duties. When she moved into the service, she assumed the duties of the higher post on request from management. She was encouraged to continue to perform the duties on the basis that there was an upcoming competition for SCL. However, no competition materialised.
As a result of lack of resolution, the Worker formalised the issue in writing to management, outlining a business case and seeking re-grading. No resolution was found through all stages of the grievance. The outcome was that there was no mechanism for a review or re-grading of an employee.
It is argued that this claim is seeking adjudication on the incorrect placement of an employee on one pay scale and seeking a recommendation that they would be placed on the pay scale that appropriately reflects their duties. It is argued that this is not a cost increasing claim in that it is not seeking to unilaterally increase or improve the terms and conditions affecting either a group of workers or a worker. Recommendations were referenced which recommend that an independent job evaluation should be conducted (ADJ-00027347), and where an employee should be placed on a pay scale that appropriately reflects their duties (ADJ-00022853). It is noted that the Employer has no job evaluation scheme in place. This is subject to negotiations. However, when this is resolved, the Worker concerned in this case would not be eligible for the scheme as she is not in the administrative grades. It is argued that as there is no progression of a national claim and no evidence to suggest any succession of such a claim is forthcoming, the Worker seeks a recommendation for re-grading.
Summary of Employer’s Case:
The Worker submitted her claim for confirmation of her post under an agreement reached between the Employer and the Union. Unfortunately, this was not approved and following a number of appeals her claim was not upheld. On 20th April 2021, she submitted a formal grievance in relation to upgrading from Social Care Worker to Social Care Leader. On 9th August 2021, a decision was issued under Stage 3 of the Grievance Procedure, which outlined that there isn’t a mechanism within the employment for job evaluation and that cost increasing claims are prohibited under the Public Service Agreement, Building Momentum. A reference to an agreement between the Employer and the Union which dated from 10th February 2014 was made at each stage of the grievance. However, it was confirmed that the Worker did not meet the criteria set out for regularising Social Care Workers to Social Care Leaders.
In 2020, the Employer introduced a job evaluation process for clerical/administrative grades. This process was subsequently withdrawn as sanction had not been given by the Department of Public Expenditure & Reform (DPER) and to date this process has not been re-instated. The matter is awaiting hearing at the Public Service Agreement Group (PSAG).
A restructuring programme is underway within the employment and once completed, it is intended that the Employer will engage with the Union on the Social Care structures and career structures within the employment.
The Employer is not in a position to progress this claim as no mechanism exists for job evaluation or re-grading claims within the employment, there would be a knock-on impact if this claim is conceded, there is a wider claim from the Union for members employed as Social Care Workers to be upgraded to Social Care Leaders and a re-structuring programme is currently underway.
In a recent Labour Court decision (LCR22663), with regard to a regrading claim, it sets out that:
“Having regard to the extant National level review of relevant services delivered by the Respondent and the potential broader implications of conceding the Worker’s claim to be regraded, the Court does not recommend concession of the within claim.”
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The Worker’s position is that she has been performing the duties of a higher grade without appropriate remuneration now for some years. The Employer’s position is that they cannot concede the claim as there is no mechanism for job evaluation or re-grading and the claim would be cost increasing under Building Momentum. The Worker’s claim has considerable merit and the fact that there is no mechanism for dealing with such cases is regrettable. However, in a number of decisions which mirror this case, the Labour Court has found that the issue of re-grading has collective implications and cannot be considered in the context of a single worker dispute. Specifically, in LCR22766, a case that seems to be on all fours with this instant one, the Court stated: “The issue of regrading has collective implications and cannot be considered by the Court in the context of an appeal in a single-worker dispute. In this context, the Court notes the engagement currently underway between the Employer and Forsa at a national level. Finally, the Worker’s claim is also cost increasing and prohibited by Building Momentum.” Given this approach by the Court, I am not in a position to recommend concession of the Worker’s claim. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I do not recommend in favour of the Worker.
Dated: 11 August 2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Industrial Relations, collective implications, not upheld. |