Worker

Employer

Anonymised Parties

Chief Clinical Engineering Technician

Hospital

Representatives

Eoghan Ryan, Forsa

Mark Comerford, IBEC

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 - 00000763

13/10/2022

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

IR - SC - 00000792

21/10/2022

The Worker is seeking a review of his grade to reflect what he contends, are additional duties which are not encompassed by his job description and are not carried out by his comparators.

The Worker has been employed as Chief Clinical Engineering Technician by the Employer since 2009, when he was regraded from Principal Clinical Engineering Technician following a review of his role and duties.

Within the Employer organisation, and clinical settings generally, there is a specific function called Authorised Person (AP) Medical Gas Pipeline System (MGPS). Despite never being properly appointed to the role, as required under the relevant guidelines and statute, and it not being part of his job description or that of his comparators, the Worker carried out AP (MGPS) duties from 2006, when the previous Technical Services Manager resigned, until 10 November 2022, as no other staff member with the required experience and expertise could perform this role.

When regraded in 2009, the Worker was also paid €5,000 for performing additional duties, including those of AP, for the period from 2006 to 2009. the Employer has variously categorised this as a once-off allowance to cover the duties going forward or as being totally unrelated to performing AP duties or as never having been paid at all. However, the Worker was regraded due to performing a mix of additional duties, as required under the new Chief Clinical Engineering Technician job description. It is not plausible that the lump sum paid at that time was in recognition of duties going forward, the regrade was seen as the solution to this issue. Rather, the lump sum was retrospection for the period from 2006 to 2009 when the Worker was effectively performing Chief Clinical Engineering Technician duties while on the significantly lower salary scale of Principal Clinical Engineering Technician.

In 2017, the Worker became aware that many of his comparators were performing fewer duties than he was and being paid at a higher rate, often in the medical physics grade.  While there are slight variations in reporting structures and grades, the Worker’s counterparts in other similar employments do not carry out AP duties. As a result, the Worker wrote to his Line Manager seeking a review of his grade. Despite the Worker repeatedly raising this matter with his Line Manager, no response was ever received from the Employer.

The following is an outline of the chronology of the Worker’s claim:

4 April 2022: The Worker wrote to his Line manager giving three months’ notice of cessation of his role as AP and indicating that he would perform the duties under protest for the notice period.

30 June 2022: The period of working under protest extended to allow for local negotiations.

4 August 2022: A meeting took place between the Worker, the Worker’s Trade Union representative, the Worker’s Line Manager and HR to discuss and agree options open to the Worker, including both ongoing engagement and ceasing the role.

21 September 2022: A phone conversation took place with the Worker’s Line Manager to discuss payment of an allowance for the Worker to perform the duties.  The Worker’s Trade Union sought €10,000 per annum from 2017 onwards.  The Worker’s Line Manager reverted to advise that the Employer was not in a position to pay an allowance and that the AP duties formed part of the Worker’s role.

10 October 2022: The Worker’s Trade Union wrote to Employer giving one month’s notice of the Worker ceasing AP duties.

21 October 2022: Dispute lodged with the WRC under the Industrial Relations Act.

28 October 2022: Correspondence was received from the Employer asserting that withdrawing from duties was not an option outlined at the meeting of 4 August 2022.

1 November 2022: The Worker’s Trade Union responded that the Worker had been working under protest since 4 April 2022 and that he was simply pursuing one of the options presented to him at the meeting of 4 August 2022, as there had been no change in the Employer’s position.

10 November 2022: The Employer responded restating its position that AP duties were part of the Worker’s role and encouraging him to re-enter negotiations.

11 November 2022: The Worker’s Trade Union wrote to the Employer restating the union position and indicating that if the Employer wanted to make an offer to resolve this matter, then the Worker would look at it.

11 November 2022:  The Employer responded to the Worker’s Trade Union restating its position and threatening disciplinary action if the AP duties were not performed.

29 November 2022:  The Head of HR emailed the Worker’s Trade Union seeking to re-open local negotiations on the Employer’s proposal but did not mention the requirement to perform AP duties under protest.

30 November 2022: The Worker’s Trade Union emailed the Head of HR stating that it was unaware of any proposal but would look at anything that it received.

30 November 2022: In a phone call with the Head of HR, the Worker’s Trade Union representative referred to the Worker’s previous position where he sought an allowance of €10,000 per annum from 2017 onwards based on the difference in pay scales with those performing the same role in comparative employments.  The Employer offered €2,500 in total for retrospection to 2017 and €1,000 pa going forward. The Head of HR said that these offers would not be put in writing. There was no mention of the requirement for the Worker to perform the AP duties under protest.

8 December 2022:  In a phone call with the Head of HR, the Worker’s Trade Union representative outlined an arrangement that was in place in a similar employment of an allowance of €6,000 per annum with retrospection.  The Employer again offered €2,500 in total for retrospection to 2017 and an increased allowance of €2,000 per annum going forward. HR confirmed that a retrospection figure based on anything close to €25,000 (equivalent to €4,000 per annum back to 2017) would certainly end up in the WRC.  There was no mention of any requirement for the Worker to perform the AP duties under protest.

20 December 2022:  In a phone call with the Head of HR, the Worker’s Trade Union representative advised that its position was that there was no possibility of closing the gap and that it would let the WRC deal with the issue of retrospection. The Employer stated that the Worker should perform the AP duties under protest and threatened disciplinary action.

Conclusion

The Worker’s Trade Union is seeking retrospective recognition of the Worker’s performance of AP duties. While he has ceased performing this duty and it does not form the main plank of the referral, the Worker remains open to considering performing this role in future if some form of resolution was to be reached.

The Worker commenced employment with the Employer in August 1997 as a Principal Clinical Engineering Technician.  On 1 August 2009 the Worker’s role was upgraded to Chief Clinical Engineering Technician following a review of his duties on a salary of €75,898.

In March 2018 the Worker requested that the Employer realign his Grade to a Chief Medical Physicist as he felt he was going above the standard duties of his then assigned grade. The Employer’s General Manager responded to this request on 12 March 2018. The General Manager acknowledged the Worker’s expertise in medical instrumentation and technology but noted that there were significant additional requirements involved in the role of a Medical Physicist and was not a speciality that was applicable to the Worker’s workplace. The correspondence concluded that the Worker’s current workload and responsibilities did not align to that of a Principal Medical Physicist. The General Manager noted that the additional duties relating to medical devices and management that the Worker had outlined were more aligned to his current grading which was considered appropriate as Chief Clinical Engineering Technician.  

 On 4 April 2022, the Worker sent correspondence to his Line Manager informing him that he would be working under protest for the next 3 months. The Worker claimed that this was due to the additional roles and responsibilities he was required to undertake which included overseeing the management of Medical Gases Pipeline Systems, acting as the authorised person and the Osmosis Plant which he claimed were under the remit of Hospital Engineering and Technical Services.  The Worker alleged that workers of the same grade in comparative employments were not carrying out these roles. The Worker requested that these roles be assigned to the suitable person or that he be properly remunerated including for the previous years in which he performed the role. 

On 19 April 2022, the Worker’s Line Manager met with the Worker to confirm his duties as agreed in his contract when his role was upgraded to Chief Clinical Engineering Technician on 1 August 2009.

Between 20-26 June 2022, the Worker’s Line Manager had a discussion with the Worker where he pointed out the Worker’s responsibility in relation to medical gases and had the authorised responsibility which was included in the job description attached to his 2009 contract which was signed by the Worker.  The Worker’s Line Manager explained to the Worker that employees of the same grade in a comparative employment covering fewer duties and receiving higher pay was a separate issue.

On 29 June 2022, the Worker sent an email to the Worker’s Line Manager and the Head of Human Resources and People Development stating he had not received an official response to his grievance and wished to escalate the complaint. 

That same day, the Worker’s Line Manager responded to the Complaint’s email advising him that this issue was discussed the previous week and reiterated that the Worker had responsibility in relation to medical gasses and this authorised responsibility was included in his contract of employment. It was explained to the Worker that as this was part of his job description, he did not have grounds for a grievance. It was further explained that the Worker’s issue of an employee at another employment receiving a higher pay grade with fewer duties was a separate issue.

On 30 June 2022, the Worker’s Trade Union Representative suggested that a meeting be held to discuss the matter further and to find a resolution acceptable to both parties.

The Worker’s Line Manager responded to this email on 30 June 2022 informing the Trade Union Representative that he had held a further meeting with the Worker that morning. At this meeting the Worker’s Line Manager produced the Worker’s contract of employment and clarified his terms and conditions of employment. The Worker stated that he wished to give up these areas of responsibility.  The Worker’s Line Manager informed the Worker that he could not decide to give these duties up after he had carried them out for 13 years as they were part of the Worker’s contractual duties.  The Worker’s Line Manager requested that the Worker take the weekend to consider his position.

On 4 July 2022, the Worker responded to the Worker’s Line Manager’s email of 30 July 2022. The Worker claimed that his contract did not include the role of an authorised person in medical gas pipeline systems and that he was not appointed to this role by the Employer, nor did he officially accept this role. The Worker’s email also claimed that this area was normally under the remit of Technical Services and requested proper recognition or remuneration. The Worker stated that the upgrade to Chief Engineering Technician in 2009 fell short of its purpose.  The Worker requested an official response within 7 days. 

 On 5 July 2022, the Worker’s Line Manager responded to the Worker’s email reassuring him that his issue was important and that would be addressed with a view to achieving a resolution. The Worker’s Line Manager acknowledged that, while the Worker’s contract did not specifically state the role of an authorised person, it did state that the safe operation of medical gases was in his job description which was part of his contract of employment.  The Worker’s Line Manager further explained that although the HR Manager who was employed at the time of the Worker’s role upgrade may not have been aware that he had to explicitly appoint the Worker to the role, the Worker had carried out these duties for the past 13 years. The Worker’s Line Manager reiterated that the Worker could not have a grievance as it has been part of his job description and duties for 13 years and that the issue would be a request for an evaluation process rather than a grievance. The Worker’s Line Manager informed the Worker that he had the right to appeal if he still believed he had a grievance. 

On 6 July 2022, the Worker informed the Worker’s Line Manager that he was not satisfied with the outcome and may have to escalate his complaint further.

On 4 August 2022, the Head of HR and the Worker’s Line Manager held a meeting with the Worker who was accompanied by two union representatives. During the meeting the Worker requested that his role be upgraded to Chief Physicist.  He was informed that the national eligibility criteria had not been met for that grade to be implemented. The Worker was given the options of:

1.                   Remaining in his role as Chief Clinical Engineering Technician but to cease AP duties. 

2.                   Continue with the AP duties as part of his current role and receive an annual allowance for carrying out these duties and 

3.                   Retrospective application of this annual allowance from 4 April 2022 which was the date that the matter was raised with the Employer. 

The Worker was asked to consider these options and inform the Employer which of the options he would prefer.

On 21 October 2022, the Worker submitted a complaint to the WRC.  On 29 November 2022, the Head of HR contacted the Worker’s Trade Union representative regarding the WRC complaint.  The Head of HR stated that the Employer was waiting on the Worker’s decision regarding its proposal at the meeting of 4 August 2022. The Head of HR expressed the Employer’s desire to resolve the issue at local level and she asked the Worker’s Trade Union representative to confirm if the Worker was no longer engaging the local process. 

On 30 November 2022, the Worker’s Trade Union Representative, replied, stating that the Worker remained open to discussing any proposal to settle the dispute.

On 5 December 2022, the Head of HR sent a follow-up email to the Worker’s Trade Union representative informing him that she would be writing to the WRC to advise that the Employer was engaging with the Worker and his Trade Union representative through local discussions. The Head of HR asked the Trade Union representative to inform her of any feedback regarding the options they had discussed. 

On 8 December 2022, the Head of HR had a phone conversation with the Worker’s Trade Union representative regarding the options that had been presented to the Worker.

On 20 December 2022, there was a telephone discussion between the Head of HR and the Trade Union representative. The Trade Union representative informed the Head of HR that the Worker would not be carrying out his duties as he had given notice of cessation. The Head of HR explained that this was not the normal process. The Head of HR informed the Worker’s Trade Union representative that the Worker should be advised to work under protest as failure to do so might lead to disciplinary action. The Head of HR also noted that the Employer was still awaiting a response from the Worker in relation to the options that were given to him at the meeting of 4 August 2022. 

On 11 January 2023, the Head of HR offered the Worker a monthly allowance of €166.67 (€2,000 annually) to continue carrying out the duties of Medical Gas Authorised Person which would be applied from 4 April 2022, the date in which the matter was raised. 

On 30 January, the Worker’s Trade Union representative emailed the Head of HR to inform her that the settlement offer was lower than what was proposed during recent negotiations to resolve the matter and as a result the union’s position remained unchanged.

The Head of HR responded to this email on the same day outlining her understanding of the issues at hand which included regrading, a retrospective payment and withdrawal from duty. The Head of HR asked the Worker’s Trade Union representative to clarify the union’s position.

On 9 March 2023, the Worker’s Trade Union representative advised the Head of HR and the Worker’s Line Manager that local negotiations remain ceased, and the cessation of AP duties remained in place. The Head of HR responded stating that the cessation of duties pending an outcome is not acceptable to the Employer and that the Worker would be required to work under protest. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I note that the Employer has previously offered the Worker a retrospective payment of €2,500 and an annual allowance of €2,000 for carrying out the AP duties. 

In order to bring this dispute to a conclusion, I recommend that the Employer increase the previous offer in relation to both the retrospective payment and the annual allowance.

Having read the submissions of the parties and listened carefully to the oral submissions on the day, I recommend as follows:

I recommend that the Employer make a payment of €5,000 to the Worker in respect of the retrospective element of this claim. 

I also recommend that the Employer pay the Worker an annual allowance of €3,000 to cover the AP duties.

Additional duties – retrospection and ongoing allowance