Worker

Employer

Anonymised Parties

A Social Care Worker

A Child Welfare Agency

Representatives

Forsa

Comyn Kelleher Tobin

Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 196

CA-00049433-001

30/03/2022

The Worker is a Social Care Worker (SCW) and is seeking regrading to a higher grade of Social Care Leader (SCL) because of carrying out extra duties with greater responsibilities.   The Employer submits that if the Worker’s claim succeeds, it would have knock-on effects for similar grades with the employer.

It is submitted that the worker is employed in the position of Social Care Worker SCW since September 2017. The claim is that the worker is performing the duties of a Social Care Leader SCL which yields higher remuneration then a SCW.   Forsa claim that the worker should be acknowledged in the role as a SCL and be afforded the appropriate rate of pay for the role she performs.

Forsa is of the view that this is not a cost increasing claim forbidden under the National agreement rather it is acknowledging the work that the worker is performing.

On commencing the role in 2OI7 and over a period of time it came apparent to the worker that the post of SCW which she was working in had responsibilities and duties which were akin to the post of SCL. On 4th October 2019 the worker met with her line manager and advised her the role and responsibilities undertaken by the worker involved responsibilities at a higher level and met the criteria for SCL level. This was outlined in a letter to the line manager who accepted the arguments made by the worker that the role she was performing was that of a SCL and thus the worker commenced to use the grievance procedure to address this dispute. This was stage 1 of the grievance procedure.

ln keeping with the Grievance procedure, a meeting was held on 14/11/2019 with the workers line manager and area manager.  The outcome of the meeting was that that the roles and responsibilities of the worker was on par with SCL but that it was not within their gift to grant same. The grievance was forwarded to the Regional Manager under stage 2 of the grievance procedure.   Due to the Covid pandemic and the suspension of the Disciplinary and Grievance procedure this meeting was delayed until 2Oth October 2O2O.

The outcome of this meeting was that the Regional Manager was in support of the arguments and acknowledged the worker had validity however he was not in the position to grant the request as it was beyond his remit to regrade staff.   He advised the worker to refer the grievance under Stage lll of the Grievance Procedure in writing to the Regional HR Manager.

The Stage III meeting was held on 13/07/2021 and the outcome of this was a decision not to regularise the worker to the grade of SCL.

During this meeting the worker introduced a letter dated 27/11/2017 from Assistant General Secretary, IMPACT Trade Union regarding the National Aftercare Structure. This letter outlines that all Aftercare Workers (ACW) are grade coded as SCLs.    Having compared the ACW role and responsibilities, it was submitted that the worker was conducting equivalent duties and had identical responsibilities to the ACW.   

Reference was also made to a letter dated 10th February 2014 from the Chief Operating Officer sent to IMPACT Trade Union which outlined proposals to regularise Social Care Workers to Social Care Leaders 'if they have been in post for more than two years prior to December 2012'.

 It is submitted that this needs to be referenced alongside the Aftercare Worker standardisation of grade in 2017 and that there is no difference between this claim and the ACW claim, and that they were granted it in 2017.

The employer submits that the worker lodged a grievance with the Employer seeking her role to be regraded from that of SCW to SCL.  The complaint progressed through all stages of the grievance procedure. Following Stage III the Regional HR Manager decided not to regularise the worker into the SCL grade as he formed the view that she did not meet the criteria in the 2014 letter from the Chief Operating Officer and he stated that any other claim outside of this letter is prohibited by the current Pay Agreements (Building Momentum) and would be considered a cost increasing claim in that regard.

The employer submits that while it is clear that the Worker is well regarded and the significance of her work is acknowledged, it is not possible to regrade the complaints’ role and change her contract as to do so would breach the national agreements, in particular “Building Momentum – a new public service agreement 2021-2022”.  The public service unions, including FÓRSA have recently attended negotiations facilitated by the WRC and under the proposals ‘Building Momentum’ is to be extended by 1 year to 31st December 2023.  The said proposals are before the members of the said unions for approval and it is understood by the Employer that FÓRSA is recommending acceptance of the proposals. The Employer submits that a restructuring programme is currently underway and once complete, it is intended that FORSA and the Employee Relations section will engage on the Social Care structures and career structures. In addition, it is submitted that there is a plan for official registration of Social Care staff through CORU, opening in November 2023.  Job descriptions for SCWs and SCLs in the community have recently been agreed with FORSA.

The respondent also submits that while similar there are a number of differences between the roles of SCWs and SCLs and that SCL role includes Supervisory responsibilities and delivery of training internally and externally.   Furthermore, there are additional Eligibility Criteria and Experience requirements for SCL roles.   The worker in this case does not have a supervisory role and has no responsibility for staff.

 It is further submitted that any regrading or changes to Social Care roles and career structures are matters for negotiation with the unions and stakeholders in line with the national pay structures. It is not within the gift of the Employer to regrade the workers’ role and change her contract.    In particular, it is submitted that the Employer is not permitted to regrade roles in the manner suggested as such a move would be cost increasing and is precluded for the duration of the current national pay agreements.

The Employer adds that it regularly runs recruitment campaigns for SCLs, and it is submitted that SCL roles have been advertised over the past number of years.  The Worker is in a position to apply for the role of SCL on the same basis as all other SCWs who fulfil the eligibility, qualification and experience criteria as set out in the job specification.

The employer submits that the parties are subject to a collective bargaining relationship, and it is submitted that a referral pursuant to s.13 Industrial Relations Act is inappropriate in the circumstances where there are agreed procedures for dealing with such issues.  Regrading of posts within the Employer’s organisation, is a matter for government, in particular the Department of Department of Children, Equality, Disability, Integration and Youth (DCEDIY) and Department of Public Expenditure and Reform (DEPR) and cannot be circumvented in the manner of a complaint to the WRC. 

 The Employer draws the Adjudicator’s attention to a Labour Court recommendation LCR22465 where FÓRSA made a referral under s.20(1) of the Industrial Relations Act 1969 regarding a refusal  to reinstate a job evaluation scheme. Of note the Labour Court accepted that the Employer in that matter was required to secure sanction from the relevant Government Departments and such sanction was denied as it was a cost increasing claim in the context of the public service agreements.  The Court in that instance recommended that the parties return to the agreed procedures in order to attempt to find agreement.  

It is submitted on behalf of the Employer that they have been in correspondence with FÓRSA regarding the issues raised by this Worker. In recent correspondence from Corporate Employee Relations Manager it was noted that the Employer has previously engaged in a re grading exercise in 2014 and is committed to processing the Social Care structures review and reform.

I note the workers position regarding the extent of duties carried out by her.  I also note the workers submission that there was no dispute as to the work being carried out however the employer at the hearing clarified that there was no dispute as to the significance of the work being carried out by the worker however the employer does not accept that the work being carried is that of a SCL.  In this regard the employer outlined some significant differences between the role of SCW and SCL one of those being that SCLs have Supervisory and training responsibilities.  

I note that the worker herself in this case acknowledges that she does not perform supervisory duties and has no staff responsibilities.   In addition, I note that this claim has progressed through the internal grievance procedure and has been dealt with at Regional HR Manager level where the conclusion drawn was that the worker did not meet the criteria outlined in the 2014 letter from the Chief Operating Officer.   It was also stated that any other claim outside of that letter was prohibited by the current Pay Agreements (Building Momentum) and would be considered a cost increasing claim in that regard.

Having carefully considered the arguments outlined by both parties and having regard to all of the circumstances surrounding this dispute, I do not recommend in favour of the worker.

Having considered the arguments outlined by both parties and having regard to all of the circumstances, I do not recommend in favour of the worker.