Employee

Employer

Anonymised Parties

An Estates Manager

A Hospital

Representatives

Colm Lawless, ER Consultant

 Loughlin Deegan, Byrne Wallace Solicitors

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000855

15/11/2022

The employee is an engineer and, in 2005, he joined the hospital as a maintenance manager at grade VIII of the employer’s pay scale.  He is currently at the top point of the grade VIII scale, on an annual salary of €90,965.  He reports to the hospital manager.

The hospital was relatively recently established when the employee was recruited in 2005.  He was the first person hired into what was to become the estates department.  With the hospital manager at the time, his first task was the commissioning of a review of technical maintenance services and the structure of the department that would be required to manage the hospital property and its engineering systems.  A report was published in June 2007 and, among a number of proposals, it recommended that the maintenance manager be appointed as the “estates manager” and that this role should be the budget-holder for the maintenance services in the hospital.  The employer accepted this proposal and, although there have been recent exceptions, the employee is referred to as the estates manager.  He now manages a department comprising 20 employees, including six direct reports, four of whom are grade VII maintenance managers.

The employee claims that his job has expanded to such a degree that the alignment of his role to the grade VIII manager scale is not appropriate.  His position is, that as the head of an engineering department, he should be aligned to the grade of the technical services officer.  He also claims that he should be paid for overtime and for attending work in emergencies.  Lastly, he is seeking to avail of the employer’s arrangements regarding added years for an entitlement to a pension for employees in certain professional roles.

Since he engaged in the grievance procedure to have this issue resolved, the employee said that he has been victimised by having some of his responsibilities withdrawn and by managers reverting to the use of “maintenance manager” as his job title.

Arising from the recommendations of the 2007 report into the maintenance function at the hospital, several significant developments impacted on the responsibilities assigned to the job of estates manager.  As I am required not to identify the employee or the employer, I do not intend to set out the details of these changes here.  I have taken account of the employee’s submission and the information he provided regarding the development of his role from 2007.  The employee carried out his additional responsibilities in good faith.  He was on call in the event of emergencies and, as the only member of his department who is a qualified engineer, his direct reports rely on his expertise when they are on call.

Since 2005, the employee said that he has worked with five hospital managers and arising from the structure of his department which is set out in the 2007 report, each one has expressed support for his claim to be re-graded.  Following the financial crisis of 2008 and the impact of FEMPI on public service pay from 2013, the employee and his representatives understood that there was little appetite to address a re-grading claim.  A new hospital manager was appointed in late 2019 and in May 2020, the employee wrote to her and proposed that his claim be addressed in collaboration with his union representative and the HR department.  Informal discussions took place, but without any conclusion and, in July 2020, the employee invoked stage one of the grievance procedure.  With no progress emerging from stage 1, the employee invoked stage 2 of the procedure.  A hearing took place in April 2021, resulting in some movement in favour of the employee’s position. 

One of the proposals from stage 2 of the process was a decision to conduct “a desktop review” of the resources in the estates department at the hospital and a comparison with other hospitals.  A final report was issued in March 2022 containing the following proposals for consideration by both sides:

§  The employee’s job would be re-graded to the top point of the general manager salary scale;

§  He would forgo the right to claim overtime and he would take time off in lieu of any hours worked outside his normal working hours;

§  To reduce the employee’s workload, a new post of assistant estates manager would be established;

§  He would take on responsibility for fire prevention at the hospital;

§  Every second week, he would provide an on-call service in return for an additional two hours’ pay every second week.

The employee rejected this proposal because he would have lost his entitlement to overtime pay and he would have been required to take on responsibility for fire prevention without any added resource.  The offer of two hours’ pay for being on-call was inconsistent with the existing norm of four hours and the details regarding the service-level expectation were not established.  Finally, the issue of added pensionable years was not addressed. 

In November 2022, the dispute progressed to a stage 3 hearing under the employer’s grievance procedure.  Mr Lawless’ submission notes that the outcome “was regressive and rolled back the majority of progress that had been made by both sides at Stage 2.”  The outcome acknowledged that the employee was entitled to overtime and that there may be merit in his claim to be up-graded to the technical services officer scale.  However, it was not possible to reach agreement and the grievance was submitted to the WRC for a recommendation.

In his submission, Mr Lawless provided examples of incidents that have occurred over the past 18 months which, he alleges, are examples of victimisation of the employee since he initiated the grievance procedure.  I do not intend to list these incidents, but I note the employee’s position and his concern that his job is being undermined and that the employer’s failure to address his concerns has an impact on patient care and safety.

In summary,

§  The employee is a qualified engineer with responsibility for an estates department in a hospital that has expanded significantly since he was recruited in 2005.  The grade VIII manager is an administrative scale and is not appropriate to his engineering job.  He should be aligned to the technical services officer scale.

§  He should be paid for coming into work if he is called out to deal with an emergency.

§  He should be paid for working overtime.

§  As a qualified professional, he is entitled to benefit from added pensionable years.

§  The manner in which he is treated by his employer which, he claims, amounts to victimisation, should be addressed and ended.

Outlining the employer’s position, Mr Deegan said that there have been significant developments at the hospital since the publication of the 2007 report and its recommendations are not relevant in the current environment.  He said that, even since the publication of the outcome of stage 2 of the grievance procedure in March 2022, circumstances are different and all spending has been tightened.  Although the proposal at stage 2 was that the employee would be paid overtime when he worked additional hours, this is now prohibited for his grade.  Mr Deegan said that the employee is rarely required to work more than his contracted hours, and, when he is required to do so by the hospital manager, he is entitled to time off in lieu.  The outcome of stage 3 of the grievance procedure was that the employee was not entitled to be paid when he attended work outside normal hours.

The employer has no issue with the employee’s job title of estates manager, but Mr Deegan said that any claim to align with the technical services grade is not appropriate.  He said that this grade is relevant to level 4 and section 38 hospitals, where the estates manager manages their own capital projects or where the jobholder oversees the engineering services of a large hospital or a group of hospitals.  Mr Deegan said that the employer has restricted the circumstances in which an employee may be re-graded and that it may only be done with the approval of the chief executive officer.

At the hearing of this dispute, both sides engaged positively to arrive at a resolution of the employee’s grievances.  I have listened carefully to the employee’s case that the grade VIII manager scale is not appropriate for his role as the person with responsibility for the hospital’s engineering services.  I am mindful also of the constraints that the hospital faces, and the potential for any outcome from this grievance to evolve into a collective claim.  It is clear to me that the claim for alignment to the grade of technical services officer is not something that the hospital can agree to and an alternative resolution must be examined.  Taking account of the progress made at stage 2 of the grievance procedure in March 2022, and the cost constraints recently imposed by the employer, I make the following recommendations:

1.              In accordance with a recently published circular regarding job re-grading, the HR director should seek approval from the chief executive for the employee to be moved to the top point of the general manager grade.

2.                   The following duties should be included in the list of responsibilities assigned to the role of estates manager:

a)         Prioritisation accountability;

b)         Budgetary management and responsibility;

c)         Systems for emergencies to ensure that patient care is not affected;

d)         Efficient use of resources;

e)         Compliance with financial and fire regulations, including procurement;

f)          Attendance at fire safety committee meetings;

g)         Systems for measurement of activities and complexity of work.  (This may require an appropriate IT solution).

3.              The employer’s current policy is that managers at grade VIII and above are not paid overtime when they work additional hours.  Therefore, in accordance with the employee’s contract of employment, he should be compensated with time off in lieu for working more than his standard hours in any week.

4.              In his professional capacity as the person responsible for engineering services in the hospital, the employee has been issued with a work mobile phone and he may be contacted in an emergency outside his normal working hours.  He is not rostered on-call but he may decide that he should attend at the hospital in an emergency, or he may be requested to do so by the hospital manager.  In such circumstances, he should be compensated by time off in lieu of the hours that he attends to deal with the emergency.

5.              The HR director should progress the employee’s request for additional pensionable years by asking the superannuation department to examine his entitlements in this regard.

6.              An independent mediator should be identified and agreed by both sides to address the communications problems being experienced by the employee and the managers he engages with.  This should be the first step to avoid an escalation of the current problem into a formal complaint under the dignity at work policy.

These recommendations are made in the best interest of the employee and in the context of the employer’s capacity to respond to his grievance.  I would ask both sides to give them serious consideration and a positive response.

Expansion of role, re-grading