Worker

Employer

Anonymised Parties

An Education Specialist

An Educational Body

Representatives

Michael Ellis

Cathy McGrady B.L. instructed by Mason, Hayes Curran LL.P.

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 - 00001081

03/02/2023

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

IR - SC - 00001082

03/02/2023

This complaint is lodged against an education authority arising from the salary and allocation of duties proposed for the complainant on her return from an extended period of secondment which, she says, do not reflect her position in her specialist field.

During almost twenty-three years employment with the respondent, the complainant was actually seconded to another body foratotaloffifteenofthoseyears.

The first secondment from 2006 – 2009 was a national role inadult education and subsequently as Director of that body from February2010. It thencontinuedconsecutivelyfortwelveyearsuntilAugust2022.

Her secondment ended due to the re-organisation of that body. The salary for the role was set by the Department of Education at the grade of Civil Service Principal Officer. When the body ceased operations, she was not eligible for a redundancy payment as her contract of employment continued with the respondent.

She was obliged to return to the respondent on September 1st, 2022 and was automatically returned to the pre-secondment salary scale (details provided) in a position she had last held in 2006 with salary at the top of the salary scale. In this regard, her working conditions were changed unilaterally without consultation.

There are no regulations for secondment of professionalnon-teaching staff employed within her sector. Therefore, the conditions of secondments for teachers should not apply to her.

Even if this was the case, the fact that her employer supported her secondment for twelve consecutive years would be contrary to all such guidelines. There are no reasons to justify the respondent’s decision to return her to a role and duties assigned at the grade and level it did, as it does not reflect her national and international expertise in career guidance with twelve years’ experience in senior management at national level.

As she held a position as a national expert and director of a national agency the respondent should appoint her to an appropriate director or senior management level role in her field, with commensurate remuneration and pension contributions reflecting her secondment salary i.e., at Civil Service Principal Officer level or equivalent. She understands that such an accommodation has been made for a male colleague in another similar organisation.

This is a trade dispute relating to reinstatement of higher salary and pension entitlements since September 1st, 2022.

The respondent says that it is sympathetic to the position in which the complainant finds herself, but at all times she knew precisely both the basis of the secondment and the basis on which she would return.

While it is true that there is no explicit provision for her grade, there are sufficient guidelines to make the position clear.

In respect of her contract status while she was seconded this is a matter that should have been addressed to her then employer and it is not one for this respondent.

There is a preliminary issue as the complaint has been referred under section 13 of the Industrial Relations Act 1969.

Section 13(2) of the Act provides that an Adjudication Officer cannot investigate a dispute connected with the rate of pay of a body of workers.  This dispute concerns the rate of pay that is payable to an employee on the conclusion of a secondment.

The respondent has a number (eleven or twelve) of employees on secondment at any one time and any recommendation by the WRC would have significant implications for those employees but also generally, for all employees who may wish to avail of a future arrangement.

The respondent would take a very different approach to secondments if it were to be obliged to apply the terms and conditions of the position to which an employee was seconded, upon their return to their substantive post. This would be to the significant disadvantage of employees who currently benefit from secondment arrangements or may do in the future.

Furthermore, there are sixteen comparable organisations with a significant number of employees and any such decision would have implications far beyond the respondent to this claim.

In the matter of a Research Fellow v a UniversityAppendix 27, ADJ-00027947 the Adjudication Officer, in a similar type of claim, held,

In considering this argument I accept that the complaint is from one individual worker however any recommendation in this complaint has the potential to be utilised across a range of workers or as the Act states: a body of workers.

It is therefore, with regret, that I have to accept that I do not have jurisdiction to make a recommendation regarding this complaint. 

The Adjudication Officer is therefore asked to decline jurisdiction to investigate this trade dispute

Further the Complainant has failed to follow internal procedures and in particular has not exhausted the grievance procedure. She is clearly aware of the Grievance Procedure, having used it in relation to her claim for critical illness pay.

The formal Grievance Procedure involves four stages, the last of which is referral to the WRC. The complainant has not pursued the previous three stages available to her and it is submitted that her referral to the WRC is therefore entirely premature.

In the case of Gregory Geoghegan t/a TAPS v A Worker2 Appendix 28 the Labour Court held

The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.

This case was cited in the recent decision of A Worker v An Employer (adj 40376)in which the Adjudication Officer held:

It is well established that, before submitting a grievance about any matter to the WRC, an employee must exhaust the internal procedures at their workplace. In Gregory Geoghegan t/a TAPS v. A Worker, INT1014, the Labour Court held:

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

I note that the Employer’s Grievance Procedure was referred to in the Worker’s Contract of Employment dated March 2021. I also note that the Employer’s Grievance Policy and Dignity at Work Policy were accessible on the Employer’s internal website. The Worker did not appeal the findings of the internal investigation conducted by the Employer, about which she was informed on 28 July 2021 and 17 August 2021. Further, she did not invoke the formal grievance process concerning her other complaints, despite being informed that she could do so by the Employer, on 18 November 2021 and 23 November 2021. As the internal procedures have not been exhausted, I cannot insert myself into the procedural process. In the circumstances, the Worker’s dispute is without merit and is not well founded.

The complainant has stated on her complaint form that she has referred the matter to the WRC in order to escalate it. It is submitted that the Adjudication Officer should decline to investigate a dispute where there are internal, nationally agreed procedures available, that remain open to her.

In any event it is denied that the complainant has any entitlement to a salary that she held on secondment, following the conclusion of the secondment. If the complainant should have had an entitlement to redundancy upon the closure of the organisation in which she worked, that is a matter for that organisation and not this respondent.

She was at all times fully aware of the terms to which she would return to the respondent following secondment.

Although it is agreed that the complainant is not subject to the same terms and conditions as a teacher, it is of note that the Teachers Arbitration Board, in 2021, rejected a claim for compensation by teachers. The TAB recommended that teachers returning from secondment with support services operated by the department should not be entitled to any additional payments or measures as compensation for any loss of earnings or pension entitlements.

Although referring to teachers, it is submitted that the principle is transferrable to the claim herein.

In the dispute relating to Critical Illness sick pay case, the complainant instigated the Grievance Procedure while on sick leave, but surprisingly and unreasonably failed to follow it, instead referring the matter to the WRC.

Insofar as she complains about any delay on the part of the respondent, in addressing her grievance, it must be noted that she only lodged her grievance on January 23rd, 2023, during her period of sick leave, and submitted her complaint form on February 3rd, 2023.

The respondent repeats that the Complainant failed to follow and/or exhaust internal procedures in relation to this matter and the Adjudication Officer is asked to not to insert themselves into an internal process, which has been instigated but suspended by the complainant, due to her referral to the WRC.

It is again submitted that any recommendation in relation to the interpretation of Circular 63/2015 and or the Operation of the Critical Illness scheme, would affect a body of workers.

In the case of National Museum of Ireland v Noreen Ward ADJ 23370Appendix 31 the Labour Court held:

The Court is satisfied that the issue in dispute would require an interpretation of the Public Service Superannuation (Miscellaneous Provisions) Act 2004.  Therefore, it is clear that the effect of such an interpretation is not confined to one individual. Potentially at least, it impacts on others whose circumstances are similar. In these circumstances the Court is satisfied that any decision that it would make in this case would, actually or potentially, affect the pay of a group of workers.

Section 13(2) of the Industrial Relations Act 1969 precludes an Adjudication Officer from investigating a trade dispute that is connected with the rates of pay of body of workers.

In the case of An Employee v A Centre Catering for Persons with Intellectual Disabilities (ADJ 29233) Appendix 32, the dispute concerned the Complainant’s claim to benefit under an Injury at Work Scheme. The Adjudication Officers recommendation included the following:

The Respondent has explained its reasons as to why it cannot operate the scheme and whilst this is unsatisfactory from the Complainant’s perspective, I consider that any change to the terms of the scheme or to the sick leave policy to mandate the application of the Injury at Work Scheme, is a matter for collective negotiation as distinct from a recommendation arising from an individual case. In a somewhat similar vein, I note that the Labour Court [LCR22370] declined to interpret the provisions of a Circular relating to incremental credit and in that regard, the Court stated:

“…..it is clear that the effect of such an interpretation is not confined to one individual. Potentially at least, it impacts on others whose circumstances are similar. In these circumstances the Court is satisfied that any decision it would make in this case would, actually or potentially, affect the pay of a group of workers”.

It is submitted that the foregoing case law is of direct application to the circumstances here. This would have far wider implications than this individual case.  

The respondent at all times acted reasonably, and in accordance with Circular 63/2015. and followed the advice of two medical practitioners, both of whom advised that the Complainant did not meet the criteria for critical illness payment, and based its decisions on those advices.

In a similar case of Technical University Dublin v a Worker (22217), Appendix 33 the Labour Court, overturning a decision of the Adjudication Officer, held

Having carefully considered the Parties’ written and oral submissions, and in particular the specialist medical reports prepared by two different specialists in occupational health opened to it, the Court finds that the Worker was not eligible for the CIP payment for the claimed period between October 2017 and January 2018.

The Complainant received her full entitlement to Ordinary Sick Leave Pay.

In summary, the trade disputes referred by the Complainant to the WRC on her complaint form, concern a body of workers, and in accordance with Section 13(2) of the Act, the Adjudication Officer lacks jurisdiction in relation thereto; and/or the complainant has failed to follow and/or exhaust the internal processes and in particular the Grievance procedure, prior to submitting her complaint form.

For the substantive reasons set out in response to the disputes relating to the complainant’s salary and critical illness pay, no recommendation is required; and/or the purported dispute in relation to the recoupment of social welfare payment is not properly before the WRC as it occurred after the complainant’s complaint for was lodged.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. As will be seen above the respondent has raised an issue as to jurisdiction in respect of both complaints.

In the first, that related to the terms of the return from secondment, the respondent says that under section 13 of the Industrial Relations Act 1969. Section 13(2) of the Act provides that an Adjudication Officer cannot investigate a dispute connected with the rate of pay of a body of workers.  

It goes on to say that this is not a matter personal to the complainant but would have implications for current and future employees undertaking a secondment.

The respondent says therefore that the dispute concerns the rate of pay that is payable to any employee on the conclusion of a secondment.

The complainant responds that she is making the complaint only on her own behalf.

That may be her intention, of course, but in my view no positive recommendation in the complainant’s favour could be confined in its application to her alone. Any version of the outcome she seeks from this process would be seized upon, not only by colleagues within the same, or similar organisations but in the wider public sector and beyond.

Indeed, she sought to rely on the precedent of an alleged case of a person who got the benefit she now seeks. While she did not provide the detail to support this it more than illustrates the reality and how the world of industrial relations works and provides all the confirmation she needs that others would do the same.

Accordingly, I find that this aspect of the complaint may not be considered under the Industrial Relations Act.

In relation to the second complaint the respondent raises a different preliminary issue; that the complainant has failed to exhaust the internal grievance machinery before the reference to the WRC.

On this aspect of the matter the complainant initiated her grievance on Monday, January 23rd, 2021, and referred the matter to the WRC on February 3rd, the Thursday of the following week.

She justifies this on the basis that she was entitled, under the terms of the grievance machinery, to a response within five days, which did not come, and that it was just short of the ten days for the second stage of the process.

This is an excessively literal, and litigious interpretation of workplace grievance procedures, and the respondent points out that the response was delayed because the complainant was on sick leave at the time.

A reply did come on February 10th and the respondent says that the grievance machinery remains open to the complainant.

These timelines in workplace policies must regarded with a degree of latitude as advisory and an encouragement to employers not to be tardy in dealing with grievances. Where there is undue delay, an Adjudicator would certainly take this into account.

But, to suggest that the jurisprudence referred to above (ADJ 40376) on the necessity to exhaust such procedures should be set aside following a short delay or a technical breach, or without prior notice to the employer of the intention to depart from the process would not be in the interests of good workplace relations and practise.

On these facts, it is not sufficient to excuse a person from the requirement to exhaust the machinery at the level of the workplace

For that reason, the short delay in this case is likewise not sufficient to relieve the complainant of the requirement to do so. This then brings her within the ambit of the authorities referred to and the established practise of the WRC and its predecessor in applying this principle.

Accordingly, this matter should be returned to the workplace machinery and further pursued there between the parties.

In passing, I might add that the formality of a grievance procedure is not always the only or best way to achieve resolution of every workplace conflict, although as a last resort there may be no alternative.

The relevant (and most recent) statutory instrument on which these processes is built is now over twenty years old, and despite its references to ‘informal resolution’ the world of amicable resolution outside the workplace has changed utterly in that period, both before and especially since the enactment of the Mediation Act 2017 and the surrounding jurisprudence both here and in the UK.

Indeed, premature reliance on the grievance approach might even act, in certain circumstances as a barrier to resolution as the inevitable focus in the process will be on the validity of the grievance rather than the search for a possible resolution, which is what most parties want and which should lie at the heart of good industrial relations.

In this case, there was considerable good will on both sides, and it would be preferable if, initially at least, the parties could enter a more open and amicable discourse on how the complainant’s re-assimilation into her former employment after twenty-three years might be finessed to their mutual satisfaction, and of course having regard to the usual public service restrictions.

For the reasons set out above, I do not uphold the substantive complaints, although I strongly recommend that the parties grasp the opportunity to enter discussions with a very open agenda on how to address the complainant’s concerns.

Secondment, return to work.