Complainant

Respondent

Anonymised Parties

Business Researcher

A Public Body

Representatives

Barry Crushell Crushell & Co

Eamonn Butler Athur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043655-001

19/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043655-002

19/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043655-003

19/04/2021

The Complainant was employed by the Respondent as a Business Researcher with effect from 10th September 2008.  The Complainant submitted three cases to the Workplace Relations Commission as follows:

·        CA-00043655-001: Complaint under Section 13 of the Industrial Relations Act seeking regularisation of acting up arrangements

·        CA-00043655-002: Complaint under Section 7 of the Terms of Employment Information Act 1977, contending that he was not notified in writing of changes to his terms of employment

·        CA-00043655-003: Complaint under Section 6 of the Payment of Wages Act contending that he was not paid or has been paid less than the amount due to him

The Respondent is a Public Body and as part of their response, they set out that at the time the Complainant commenced the acting up arrangement, the normal filling of the vacant post was constrained by the terms of the Moratorium on Public Service Recruitment and that thereafter the duties of the vacant role had been distributed among a number of other people and that the Complainant was not carrying out the totality of the duties of the higher-level post.  The Respondent contended that the Complainant had, at all times been paid the appropriate rate of pay for his grade.  The Respondent also contended that a job description for his acting up role had been finalised between him and his line manager, following a lengthy consultation process, but that he refused to sign off on the job description as he did not accept that the role was at his existing grade.

CA-00043655-001: Complaint under Section 13 of the Industrial Relations Act seeking regularisation of acting up arrangements

The Complainant submitted that he commenced employment with the Respondent at a grade 5 level as a Business Researcher in August 2008 and that in 2013 a vacancy arose for a Sector Manager in a specific section and that the Complainant was successful in applying for this role.  The Complainant submitted that the role was previously performed at a grade 4 level i.e., one level than the Complainant’s existing grade.  He submitted that the role was previously performed by the predecessor of the Complainant with grade 4 level benefits and remuneration.  The Complainant submitted that he repeatedly sought clarification and confirmation of his acting up arrangements. 

The Complainant submitted that on the 13th July 2013, after five years in his original role, he was promoted to look after a specific sector under a redeployment role that was advertised internally.  He confirmed that he took over from a manager who was performing that role at grade 4 level, and that this person moved to another role initially.  In his submission he advised that in the Respondent employment, a grade 4 is a higher level compared to grade 5 and that all other Sector Managers in his division currently hold a grade 4 level.  He advised that it appeared that this grading aligns with sectors that are funded through a statutory levy.  He confirmed that there were only three sectors in the Respondent organisation that are funded through a levy, and that these included the sector to which he was assigned.  He confirmed that the organisation had a number of other sectors that are not supported through a levy.  He stated that the critical aspect of the levy was that it “ring fenced” funding for promotional activities and that one of his jobs was to engage with the stakeholders who make statutory payments to ensure that best value is attained from the funding on both the domestic and the key export markets, thus helping to drive preference for product accredited by the Respondent assurance scheme. 

Complainants’ evidence given under oath at hearing:

At hearing the Complainant confirmed the details outlined in his submission in relation to his original role of Business Researcher at grade 5 level and his redeployment to the existing role in 2013.  He confirmed that there was a significant difference in the work involved in both roles, that there was a far greater level of client interface and client relationship management, as well as a greater level of responsibility.  He confirmed that the role to which he was redeployed was previously held by a post holder who was graded at grade 4 level and that he continued to operate in the role as a grade 5.  He confirmed that he had never received a revised job description and that he believed that the role was comparable to that of other grade 4’s.  He said that he had sought clarity on the job description repeatedly and that he had an expectation that the matter would have been resolved over time but that he had continued at the existing level since his appointment in 2013. 

The Complainant advised at the hearing that he had engaged the support of his trade union representatives in seeking to resolve the matter and that a number of meetings had taken place between the union and HR.  he advised that the union had, on more than one occasion, sought an independent evaluation to consider his revised responsibilities and that despite this, this option was rejected by the Respondent.  The Complainant advised that there was a significant difference in remuneration between the grade 4 and grade 5 and indeed that other terms and conditions were impacted by the difference in grade.

Difference in the work:

The Complainant submitted that there was a big difference in the work undertaken between the roles.  He submitted that the role of the Business Researcher was mainly desk based work and completed internally within the organisation whereas in contrast to this, the Sector Manager role required a lot of client and key stakeholder engagement.  He submitted that a key deliverable is working with client companies to deliver on the sector strategy as set out within the industry and additionally that securing the trust from other key stakeholders who provide funding was critical.  He submitted that in this role he had to demonstrate that the Respondent is using funding appropriately and are taking stakeholders feedback on board to ensure that the best services are delivered effectively.  He submitted that there was far greater responsibility than he had in his previous role and that being the sector champion for the Respondent for this particular sector, required that he represented the organisation competently in a number of areas including industry development through interviews with journalists, speaking at conferences, steering group participation including one that is chaired by the Minister and collaboration with other industry partners. 

He submitted that in that role there was a requirement for a lot more flexibility in terms of carrying out roles and duties and that given that there were so many client companies and stakeholders associated with the sector who have different requests that require different responses, he was required to make informed decisions which required a significant level of judgement.  He pointed out that where the Business Researcher was not expected to carry out a similar function and that there was a lot more expectation in the new role as it was strongly linked to managing stakeholders’ expectations.  He summarised the key responsibilities of the Sector Manager role for the sector as follows:

·        Client relationship management

·        Stakeholder engagement

·        Sector intelligence

·        Strategy and planning

·        Leading through people

·        Marketing and support initiatives

He stated that the main responsibilities carried out by the Business Researcher in contrast to that role included the following:

·        Research

·        Writing articles and market trade commentaries

·        Maintaining a list of prices and suppliers and export figures on the public website

·        Maintaining key economic data for the website and other purposes

·        Preparing and delivering a weekly market report for a particular group

He stated that when he was selected for the role in 2013, he looked for clarity around the terms and conditions of the redeployment and he never received such clarity.  He submitted that in August 2015 there was a meeting to discuss posts affected by the moratorium and at that meeting there was a commitment to review grades that were affected by the moratorium and that that review was to be undertaken straight away.  He advised that the review was never carried out with him by the HR Department. 

He further submitted that he was never given a job specification in relation to the new role but that he did compile such a specification with his line manager in and around June/July 2018, however he stated that the job specification was never signed off or officially recognised.  He submitted that he had raised concerns initially seeking assurance about acting up arrangements when he commenced the role but that he was never given the assurance he sought.  He confirmed that at meetings with his line manager during 2018 there was agreement that the job he was performing was at a higher level than he was being remunerated. 

He advised that he was doing a lot of client-facing work and key stakeholder engagement and that the work he was doing was equivalent to what his colleagues in the organisation at a higher level were performing.  However, he stated that for whatever reason (which was never made clear to him) his line manager, even though he noted that he was performing at a higher standard, would not be making a recommendation for a higher grade.  He submitted that he did ask at the time but from the email of the 16th November, that the line manager had recounted the events of the 9th November, there was no reason or justification for the decision. 

He stated that in May 2018 a new line manager took over and that for a number of months there was an overlap between the two managers.  He stated that at the time of the appointment of the new line manager Mr. B, he confirmed that he would look at his role in terms of reviewing the situation about the grading.  The Complainant stated that, again it was very slow in terms of progressing the job specification for his appointment and that it was really only in 2021 that progress was made on agreeing a job description.  He stated that at that time it was the priority of that sectoral division to have all roles aligned across the overall sectoral division. 

He stated that after receiving the revised job description which now had a grade 5 attached, he realised that his role would not come with alignment to his colleagues in another division and he stated that the whole situation, including the prolonged time frame to confirm his grading, together with the revised job description issued with the most recent email, prompted him to make his complaint.  He stated that the grading of grade 5 was applied to the role to the job specification after HR discussed the matter with his reporting manager and that when he received the job specification template, there was no grading attached.  He said this grading happened after the submission was made. 

He submitted that HR sent an email to his line manager Mr. B and that he received the forwarded version of that on the 30th March 2021.  He stated that in that email, HR stated that they sensed that this might be a sensitive issue for him as they indicated in the correspondence that if he was difficult, then his line manager should contact them.  He felt this was strange as he believed he had always been very constructive in his dealings with HR and suggested that an independent assessor would look at the grading situation years earlier.  He submitted that this external avenue was completely disregarded by HR, even after his union made this recommendation and he stated that communications between the union and HR in October 2019 confirmed that HR would not allow an independent evaluation of his grading situation. 

The Complainant submitted that in October 2018 Mr. B became the Director of the overall sector and that a meeting took place with the union in early 2019 to try to resolve matters.  He stated that the feedback from that meeting was that the category he was responsible for was not big enough to warrant a higher position or a higher grade, even though his predecessor had been remunerated at a higher grade, and in fact, the size of the category and the level of activity had both increased since that time.  The Complainant submitted details of the increase in activity presented to the Board on the 25th November 2020 to support this argument. 

The Complainant submitted that the optimal resolution for him would be that the sectoral role that he was carrying out, would go back to the grading that it originally was (grade 4) and that he would receive back pay to 2013.  He submitted that he inherited a job that was at a higher level, that his predecessor was on the higher grade and that that would be the optimal solution. 

He submitted that in terms of the size of the category he was working on over the last eight years, the team had made significant progress both in terms of the categories for which they were responsible, that they had secured funding from the EU commission to help promote products across international markets and that they had a much better range of activities that supported clients.  He submitted that his role had expanded in width and responsibility, that the sectors he was responsible for were categories which rely on industry and levy support, that there is a significant increase in workload with the levy contributors.  He submitted that he had proven that the size of promotional spend was greater than what other Sector Managers deal with at a higher and that compared to other divisions within the sectoral team, his portfolio dwarfs their promotional spend where multiple Sector Managers look after the category.  In all of these circumstances he submitted that he is not being listened to and is making no headway internally despite having approached all angles of the argument.  He submitted that it has been very frustrating in terms of how the matter has been dealt with and how the Respondent has sought to brush the matter under the carpet.

CA-00043655-002: Complaint under Section 7 of the Terms of Employment Information Act 1977, contending that he was not notified in writing of changes to his terms of employment

The complainant submitted a complaint that he had not received notification in writing of a change of his terms of employment.  He submitted that he worked with the respondent since August 2008 and that he was originally employed as a grade 5 level Business Researcher.  He submitted that in 2013 a vacancy for Sector Manager was advertised as a redeployment position and that that role had been performed at a higher grade by his predecessor.  He stated that in addition, the complexity of the role had expanded enormously since he was recruited to the role and that he was never offered a revised contract of employment to reflect those changes. 

In his submission the complainant stated that the only contract he was ever given was the contract he received when he started work with the respondent in 2008 and that despite requesting a job specification for his new role, which formed part of his contract, on numerous occasions since 2013, he had never received that job specification.  He submitted that when he was selected for the role, he looked for clarity around the terms and conditions relating to  the redeployment and that the clarity was never communicated to him, that he never received an updated job contract.  He submitted that his frustration was evident in the minutes of an internal meeting sent on 15th August which detailed that a commitment to review grades affected by the moratorium was to be undertaken straight away and he confirmed that this review was never carried out with him by the HR Department. 

He further submitted that he did manage to agree a job specification for his role with his line manager at the time in 2018 but that this job description was never approved by HR and it was never signed off by his line manager.  He confirmed that the line manager did send him back an approved version by email, but he received no confirmation from HR that his job specification was approved. 

CA-00043655-003: Complaint under Section 6 of the Payment of Wages Act contending that he was not paid or has been paid less than the amount due to him

The complainant submitted a complaint under section 6 of the Payment of Wages Act, 1991, stating that his employer had not paid him, or had paid him less than the amount due to him.  He stated that he had worked with the respondent since August 2008 and that he was originally employed as a grade 5 level Business Researcher.  He stated that in 2013 a vacancy arose for a Sector Manager as a redeployment position.  He advised that the role had been performed at a higher grade by his predecessor and that in addition the complexity of the role had expanded enormously since he was recruited to the role and that he had not been paid additional compensation for the role. 

The complainant submitted that he had been originally recruited as a grade 5 level Business Researcher in 2008 and that in 2013 he had taken up a role through redeployment as a Sector Manager.  He confirmed that his grading was out of line with his counterparts within the organisation and out of line with the grade held by his predecessor in the role.  He submitted that the role had expanded since he had taken up the role in 2013 and that he had made numerous efforts to engage with management to review his role description and to review the role when the moratorium on public service recruitment was lifted. 

He submitted that at meetings with his line manager during 2018 in relation to his job specification, there was a general agreement that the job he was performing was at a high level.  He confirmed that he was doing a lot of client-facing work and key stakeholder engagement and that the work he was doing was equivalent to his colleagues in other areas of the business who were graded at a higher level.  He submitted that despite numerous efforts to agree a job specification, this was never done and a commitment to review the job was never implemented. 

The complainant sought payment of the higher salary with effect from the date in 2013 when he took up the role of Sector Manager.

CA-00043655-001: Complaint under Section 13 of the Industrial Relations Act seeking regularisation of acting up arrangements

The Respondent submitted that in August 2008 the Complainant commenced employment at a grade 5 level Business Researcher and that in 2013 he applied for a redeployment opportunity which was advertised through open competition under the heading “redeployment”.  The redeployment opportunity was for the position of sectoral manager (for a specific area).  The role was not advertised as an acting up role, but as a redeployment at the same grade.  The Complainant was successful in his application for the redeployment and in accordance with the advertisement, transferred to the role on his existing grade 5 terms.  The Respondent appended a copy of the redeployment opportunity notice to their submission.  The Respondent submitted that the redeployment resulted in no change to the Complainants’ job grade, that he continues to deliver at his existing grade 5 level.

The Respondent submitted that the structure within the department is as follows:

That the Department Senior Manager role is at grade 3 level with three direct reports

Two grade 4 Sector Managers

One grade 5 Sector Manager

The Respondent submitted that the grade 5 Sector Manager was that of the Complainant and that this structure exists in other sectors within the department.  The Respondent submitted that the difference between the Sector Manager job grades 4 and 5 are set out in an appendix to the submission and had been communicated to the Complainant on a number of occasions.  The Respondent submitted that the role of Sector Manager at grade 4 level was due to the size and complexity of the role, particularly its involvement in supporting supermarket promotion of the relevant products with priority customers in European markets. 

The Respondent submitted that the sector for which the Complainant was responsible was not as complex as it was primarily focused on less demanding wholesale and manufacturing challenges.  The Respondent further submitted that the Sectoral Manager role for the area covered by the Complainant was at grade 5 level, by reason of the smaller size of the sector, the consolidated export market and the smaller number of clients.  In addition, the Respondent submitted that the promotional activities of the sector were largely managed by other teams such as the Marketing Division in terms of Q-Mark promotions and overseas offices for EU campaigns. 

The Respondent submitted that the sector is also different from other sectors in that there is significantly more customer specific promotional activity in other sectors.  The Respondent also submitted that, for the avoidance of doubt, the Complainants’ statement about whether roles were funded through levies or not, does not impact or determine how a role is graded and that it is incorrect to state that grading is dictated by levy funding.  The Respondent submitted that grading is based on the level of responsibility and complexity of the role and that typically the larger the sector in terms of the number of producers and the number and the scale of client companies and the demands for sophisticated support required by customers, the greater the skill and management complexity required from the Sector Manager.    The Respondent further stated that the Complainant set out his views on the difference between his role as a Business Researcher for which he was originally hired as grade 5 and his role as Sector Manager which he continues to carry out as grade 5.  The Respondent submitted that the Complainant applied for the redeployment on the basis of remaining on the same grade and terms and with the understanding that the Sector Manager role would be a different role to the Business Researcher role.  The Respondent submitted that the fact that there are many differences between the roles, is not disputed by the Respondent, however, both roles are at grade 5 level.  The Respondent submitted that these are two very different jobs in very different parts of the organisation, that the Business Research role is pivotal in that it provides market intelligence and insights and that the Sector Manager role has a different purpose in terms of client and stakeholder.  The Respondent pointed out that it is not the case that one role is more senior than the other, but that they are different roles. 

The Respondent submitted that they have engaged with the Complainant and his SIPTU representative on this topic on numerous occasions over the past five years, during which the Respondent had explained the reasons for the differences in the grade.  The Respondent pointed out that the HR Director had engaged with the Complainant and his union representative in an initial meeting to hear his concerns and that several meetings had taken place thereafter to discuss the matter.  The Respondent submitted that during these meetings, they had repeatedly communicated and demonstrated the differences between the grade 4 Sector Manager role and the grade 5 Sector Manager role.  The meetings had concluded, and the HR Director had issued communication to the Complainant confirming the view that the role is positioned at the appropriate grade level within the organisation. 

The Respondent pointed out that the Complainant had stated that “the feedback from the meeting was that the category wasn’t big enough to warrant a higher position or grade”.  The Respondent submitted that they dispute this and note that not only is the size of the sector a factor in the grading of the role, but that the higher level of complexity involved within the other sectors and the wider responsibilities held by the two grade 4 roles, is taken into account.  The Respondent submitted that throughout the Complainants’ statement, misleading sectoral comparisons were made in respect of promotional activity, spend and budget and that the vast majority of the budget is spent on Q-Mark campaigns and EU programmes, both of which are managed day to day by other teams rather than the Complainants’ team. 

The Respondent noted that the Complainant had stated in his submission that “failure to give a revised job description” had been an issue and the Respondent pointed out that there was an agreed minute of the meeting held on the 9th November 2018 which stated that “MN stated that a recommendation for any grade change has to come from the (Sector Team Director) and that he was not in a position to recommend this currently based on current performance which was in line with the current grade held …  PD had transferred across into his current role and grade, which reflected what he is required and expected to work.  Differentiation in terms of role evolution and delivery in a proactive, leading and innovative manner, would be important considerations in any new grade or grade discussions”.  The Respondent submitted that as a matter of practice, the Respondent ensures that role descriptions are available and held by all staff to ensure that there is clarity for the individual, in terms of delivering expectations and to ensure each individual can openly see their contribution to the organisation’s overall strategy.  The Respondent submitted that they had attempted to carry out this review with the Complainant on several occasions, that in 2018 he had accepted a role description he had drafted himself, in which he accepted he held a grade 5 role.  The Respondent submitted that a further attempt to address a written job description for the Complainant took place in January 2021, that a job description template was furnished by HR and as it was a template document, no grade was inserted.  The Respondent submitted that the role description was agreed between the Complainant and his line manager and that when HR advised that the grade would be required on the job description, the Complainant removed himself from the process. 

The Respondent submitted that they had noted that the Complainant in his submission had stated that there was “an issue around the anomaly of how people who were promoted to different parts of the organisation under redeployment continued to be overlooked with HR and reporting managers”.  The Respondent submitted that no staff were or are promoted under redeployment and that under redeployment staff are transferred on the same grade and on their same terms and conditions, as was the case for the Complainant. 

The Respondent also noted that in his submission the Complainant had stated that “I have secured significant funding from the EU commission to help promote (sectoral) products across International markets”.  The Respondent noted that the Sector Manager (for another sector) was responsible for leading and managing EU applications, one of many of which was the application for the Complainants’ sector.  The Respondent pointed out that furthermore, it was stated that “there is a significant increase in workload with the levy contributions”, however, the Respondent contended that there had been no change in workload over the period, rather a different focus of where time was spent.  The Respondent also pointed out that the Complainant had stated that “I have proven that the size of promotional spend is greater than what other Sector Managers deal with” and in response the Respondent pointed out that the majority of the promotional spend was not under the Complainants’ responsibility and even so, that it was not an indicator of the appropriate grade. 

In summary, the Respondent submitted that the Complainant had applied for a redeployment role and was successful in securing same, that the advertisement for the role clearly stated that there would be no change to the job grade of the successful applicant.  The Respondent also pointed out that they had reviewed the Complainants’ grade on numerous occasions and that it had not been considered that his current role should be at grade 4 level and for that reason the Complainant had not been made a grade 4 role holder with associated benefits. 

The Respondent requested the Adjudicator to not recommend any upgrading for the Complainant and stated that any such recommendation would have very significant implications for the Respondent and would not be confined to the Complainants’ position.  The Respondent submitted that colleagues of the Complainant who are employed at grade 5 level, could attempt to leverage any such recommendation and that colleagues at grade 4 level would contend that they should be upgraded so as to maintain the differential.  The Respondent also drew attention to the fact that the Complainant was not represented by their trade union at this particular hearing and submitted that a favourable recommendation to the Complainant could have significant implications for the process of collective bargaining within the Respondent employment.  Finally, the Respondent submitted that over the past number of years the Complainant had applied for a number of other roles, some of which were at grade 4 level, and one of which was at grade 3 level, but had been unsuccessful in all of those competitions. 

Witness evidence HR Director:

The HR Director confirmed that when advertising the post for redeployment, it was very clearly communicated to all applicants the meaning of redeployment.  The HR Director confirmed that the Complainants’ predecessor had been graded at grade 4 level but that the second predecessor had been graded at grade 5 level.  She confirmed that the role previously had more responsibility for value added products and that these responsibilities had been changed to another sector prior to the Complainant taking up the role.  The HR Director advised that the duties attaching to the post were not the same duties that had been carried out by the predecessor of the Complainant who was at grade 4 level.  In response to questions from this adjudicator, the HR Director confirmed that she could not provide a copy of the job description of the Complainants’ predecessor who had carried out the role at grade 4 level.  In addition, in response to further enquiry from the Adjudication Officer as to why the Respondent had not opted to have the post evaluated, the HR Director confirmed that the Complainant’s grading in the role was not in doubt so there was no need to do an independent job evaluation. 

The HR Director confirmed that the post was clearly advertised as a post for redeployment at the same grade, that while she could not locate the correspondence confirming the appointment to the Complainant with the terms and conditions, she did locate an email to all staff confirming his appointment which had been appended to the submission.  She stated that there had been a number of attempts to resolve the issue of his job description over the years, but it had never been possible to agree to a job description.  She advised that the content of the job description in 2018 had been agreed between him and his line manager but that he had refused to sign the document when the grading had been inserted into that document. 

The HR Director, under cross examination by the Complainant representative, confirmed that the document prepared by the Complainant and his line manager was no more than a proposal and that it was never formally accepted as the Complainant would not sign the document.  She also confirmed that the redeployment had taken place because the organisation was subject to the Moratorium on Public Service Recruitment at that time and that it was not possible to advertise and fill positions as freely as would have been possible in the past. 

Concluding remarks on behalf of the Respondent

In summarising their position, the Respondent representative stated that the Complainant had applied for a redeployment role and was successful in securing same, that the advertisement for the role clearly stated that there would be no change to the job grade of the successful applicant.  The Respondent representative also pointed out that the Respondent had reviewed the Complainants’ grade on a number of occasions and that it was not considered that the Complainants’ role was that of grade 4 and for that reason the Complainant had not been made a grade 4 holder.  Taking into account the further implications of a recommendation of upgrading, the Respondent reiterated the request that the Adjudicator not recommend any upgrading based on the merits of the case and on the potential implications of such a recommendation. 

CA-00043655-002: Complaint under Section 7 of the Terms of Employment Information Act 1977, contending that he was not notified in writing of changes to his terms of employment

Preliminary Issue

In their submission the respondent noted that the complainant had stated that he had worked with the respondent since 2008 and had taken up the vacancy of Sector Manager in 2013 and in that context the respondent submitted that the complaint should be struck out on a preliminary basis, i.e., that the complaint is time barred. 

The respondent submitted that a claim taken under section 7 of the Terms of Employment Act must be in accordance with the statutory time limit set out at Section 41 of the Workplace Relations Act 2015.  Sector 41 (6) provides that a complaint must be brought within six months beginning on the date of the contravention to which the complaint relates.  Section 41 (8) provides that this time limit can be extended in certain circumstances, but in no circumstance, may be extended by more than a further six months.  Therefore, the maximum allowable period for a complaint to be brought for contravention is 12 months (assuming that the complainant was able to demonstrate reasonable cause for an extension from the six-month period) which the respondent disputed and in any event the burden of proof lay with the complainant to establish. 

Accordingly, the respondent submitted that even if the complainant were able to establish to the satisfaction of the Adjudication Officer that there was reasonable cause justifying the extension of the initial six-month time limit, the complainant had a strict outer limit of twelve months from the date in 2013 on which he took up the role of Sector Manager, to submit any complaint.  In the present circumstances, the complainant did not submit his WRC complaint form until the 19th April 2021.  On that basis, the respondent submitted that jurisdiction should be declined as the complaint has been submitted outside the clearly prescribed maximum timeframes for complaints under the Terms of Employment Information Act. 

The Substantive Issue

The respondent submitted that without prejudice to the foregoing, the complainant received a three-year fixed term contract between the 10th September 2008 and the 9th September 2011 for the role of Business Researcher, Information Services Department, Grade 5.  He then received a contract of indefinite duration commencing on the 12th September 2011 for the role of Business Researcher grade 5 and although his role changed following his redeployment, the terms and conditions of his employment remained the same.  The respondent submitted that no change to the complainants’ terms and conditions of employment occurred and as a consequence there had been no breach of the Terms of Employment Act.  The respondent submitted that the complainant was provided with salary memos on each occasion a salary change occurred. 

CA-00043655-003: Complaint under Section 6 of the Payment of Wages Act contending that he was not paid or has been paid less than the amount due to him

The respondent noted that the complainants’ complaint form stated “I have worked with the respondent since August 2008.  I was taken on at a grade 5 level as a Business Researcher.  In 2013, a vacancy for Sector Manager was advertised … as a redeployment position.  The role was performed at a higher grade by my predecessor.  In addition, the complexity of this role was expanded enormously since I was recruited for this role.  I have not been paid any additional compensation for this role”. 

The respondent submitted that section 5(6)(b) of the act states where “(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The respondent submitted that the payment of a salary associated with grade 4 was not a salary that was “properly payable for the purposes of the Payment of Wages Act” and that furthermore no unlawful deduction of any nature was made.  The respondent referenced Balans v Tesco Ireland Limited [2020] IEHC55 where, McGrath J reviewed the decided case law as to what is meant by phrase “properly payable”.  The respondent submitted that in this regard, McGrath J referred to a judgement of Hunt J in Babianaskas v First Class Limited [2016] IEHC598, noting that the contract will determine that which is properly payable unless there was “some enforceable variation of that contract, whether by waiver, estoppel or agreement”.  The respondent submitted that in this case it was beyond doubt that there was no amendment whatsoever to the contractual terms of the complainant.  The respondent submitted that there was no basis whatever for the complainant to contend that he was entitled to a grade 4 salary, that any such sums were “properly payable”, or indeed that any unlawful deduction was made to his wages.  The respondent submitted that the top point of the pay scale for grade 5 is €65,898 and that that is the salary that is being paid to the complainant.  The respondent submitted a copy of the pay scale and the complainants’ pay slips as part of the appendices to their submission.  In conclusion, respondent submitted that the complainant is appropriately categorised as being at a grade 5 level, that his categorisation in this respect had been considered and assessed on numerous occasions by the respondent, that a grade 4 salary is not properly payable under the Payment of Wages Act, and that no unlawful deduction was made to his wages.

In considering these matters I took into account the information supplied by both parties and their written submission and appendices and all witness evidence provided during the course of the hearing. 

CA-00043655-001: Complaint under Section 13 of the Industrial Relations Act seeking regularisation of acting up arrangements

I noted the Respondent position that the position was advertised during a period when the Moratorium on Public Service Recruitment was in place and I further noted that it was advertised as a redeployment in that context.  It is evident from the documentation provided by the Respondent that the post was advertised as redeployment and it was clear from that advertisement that the grading that would apply to the position once appointed was the existing grade of the successful candidate.  In that context I consider that the Respondent acted correctly and in accordance with the requirements set down by the Moratorium on Public Sector Recruitment to not provide promotional opportunities during that time. 

I noted further the Complainant position that over the years he sought to have his job description agreed and the grading for the job agreed.  I noted that there was no job description provided to the Complainant at the time of his appointment to the position and that the Respondent position was that the previous role had been divided across a number of people.  I noted that the Complainant and his line manager had made efforts to agree a job description and that while all parties were agreeable to the content of that job description, the Complainant himself ultimately did not accept it when the HR Department inserted his existing grade on that job description form. 

At hearing I asked the HR representative if a copy of the job description of the previous post holder was available and she confirmed that it was not, that there was no job description available prior to the current post holder, i.e., the Complainant.  In this context it is not possible to conclude whether or not the job currently carried out by the Complainant is the same job as that carried out by his predecessor.  I noted that the Complainant and the Respondent have differing perspectives on this matter. 

I noted that the Complainant sought to have his job evaluated by an independent assessor who would determine whether or not the role was at the higher level and that this was refused by the Respondent on the basis that they believed the post to be at the lower level.  I consider this position to be unreasonable for the following reasons:

·        The Complainant took up the post at his existing level, in a job that he believed held a higher level of responsibility

·        The Respondent had previously graded that position at a higher level

·        The Respondent in accordance with the Moratorium on Public Service Recruitment, had not been in a position to advertise the post as a promotional opportunity

·        The Complainant continually pointed out to the Respondent and again at hearing, that his grading was out of line with internal comparators

I noted that across the public and civil service, as the Moratorium on Public Service Recruitment eased and ultimately lifted, that many employers reviewed posts that had been filled through redeployment and that in many instances, where agreement could not be reached as to the appropriate grading, job evaluation exercises had been carried out by the relevant employer.  In this context I consider the Respondent position to not conduct a job evaluation of the role to be an unreasonable and unsustainable position.  I consider that the Complainant had carried out the duties of a post which he believed to be at a higher level and which he believed to be out of line with his counterparts within the organisation.  In that context I find that the post of the Complainant role should now be evaluated by an independent assessor and that as part of that exercise a comparison should be conducted with other posts within the organisation and with the role held by the previous post holder. 

CA-00043655-002: Complaint under Section 7 of the Terms of Employment Information Act 1977, contending that he was not notified in writing of changes to his terms of employment

Preliminary Issue

I noted the respondent position that this complaint was out of time, and I noted the evidence given by both the complainant and the respondent that the complainant took up the role of Sector Manager in 2013.  I noted the provision of section 41 (6) of the Workplace Relations Act which stated that “an Adjudication Officershall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates” and I noted further that section 41 (8) of the Workplace Relations Act further provides that “an Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) … if he or she is satisfied that the failure to present the complaint or refer the dispute within the period was due to reasonable cause”. 

In the context that the complainant took up post in 2013 and submitted his claim to the Workplace Relations Commission on the 19th April 2021, it is evident that this case is out of time and I so find.

CA-00043655-003: Complaint under Section 6 of the Payment of Wages Act contending that he was not paid or has been paid less than the amount due to him

I noted that the complainant submitted in his claim form that his employer did not pay him or had paid him less than the amount due to him and I noted further the position of the respondent where the respondent referred to section 5(6)(b) of the act in relation to wages that are “properly payable” to an employee. 

This case directly relates to a complaint from the complainant that his post should be graded at a higher level and this matter is the subject of complaint CA-00043655-001.  The complaint in relation to the grading of the complainant can only be properly addressed through the mechanism provided under the recommendation set out below.  Until such an exercise has taken place it cannot be said that the higher level of pay is due to the complainant.  In that context I do not consider that the complainant has been paid less than the amount due and it is clear that he is being remunerated in accordance with his existing contract.  In those circumstances I find that this complaint is not well founded. 

CA-00043655-001: Complaint under Section 13 of the Industrial Relations Act seeking regularisation of acting up arrangements

I have found that the Complainants’ post should be evaluated by an independent assessor, and I further recommend that in the event that the job is evaluated at a higher level, that retrospection be paid for two years prior to the date of submission of claim on the 19th April 2021, i.e., retrospection to be paid to the 19th April 2019. 

 CA-00043655-002: Complaint under Section 7 of the Terms of Employment Information Act 1977, contending that he was not notified in writing of changes to his terms of employment

I have found that this complaint was out of time, therefore it is my decision that this complaint was not well founded.

CA-00043655-003: Complaint under Section 6 of the Payment of Wages Act contending that he was not paid or has been paid less than the amount due to him

I have found that as the Complainant’s post is currently graded at Grade 5 level and as he is in receipt of the correct salary based on that grade, that is the salary which is properly payable to him under the Act. I have also found that it has not yet been established if the post should be graded at a higher level and in those circumstances, it is my decision that this complaint is not well founded.

Appropriate grading, payment of wages, terms of employment