Worker

Employer

Anonymised Parties

 A Consumer Services Manager

A Hospital

Representatives

Bernie Walsh

 Paul Hume

Act

Dispute Reference No.

Date of Receipt

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

CA-00043398

05/04/2021

This dispute concerns whether the Worker is on the correct grade. The Worker is currently a Grade 7 Hospital Manager. The Worker is seeking that the position is re-graded to a Grade 8 post. She contends that managers who have the same, equivalent or similar job responsibilities to her in other hospitals are Grade 8 posts.

At the adjudication the Adjudicator advised the parties to refer the matter to an independent job evaluation process to determine if the Worker’s terms and conditions were “like work” to Grade 8 managers in other similar hospitals.  The parties agreed to this and after a delay appointing a Job Evaluator Assessor, one was agreed and appointed (hereafter referred to “the Assessor.”) The job evaluation concluded on 2 April 2023 and in his report the Assessor found that the Worker’s duties, responsibilities, terms and conditions were like that of a comparator Grade 8 manager in another hospital.

The Employer disputed this finding and refused to implement the findings of the report contending that the job evaluation process had been defective and the findings should be set aside.

The Worker submits as follows:

She brought an internal grievance with her Employer on 4 September 2019 that the work she was doing was a Grade 8 managerial level. Her grievance was not upheld by the Employer and having agreed that the internal process was exhausted the parties agreed that the dispute could be referred by the Worker to the WRC under the Industrial Relations Acts. The dispute was referred by the Complainant to the WRC for adjudication on 5 April 2021.

The Worker submits that her work is like-work to that of Grade 8 hospital managers in other similar sized hospitals within the State.

The Worker seeks that the findings of the independent job valuation assessment completed on 2 April 2023 be upheld (the evaluation found her post was like work to a Grade 8 comparator) and she seeks back pay to commence on the date that she raised the internal grievance, ie 4 September 2019.

The Employer submits as follows:

The work performed by the Worker is highly-valued but it is Grade 7 and not a Grade 8 post.

The Employer did not wish this matter to be referred to an independent job evaluation process in the first place however they accepted the verbal recommendation of the AO made during the Adjudication hearing on 21 November 2022 - that the only way that this dispute could be progressed was to allow an independent job evaluation to take place.

The job evaluation was carried out by the Assessor.

After the Assessor published his findings on 2 April 2023, which found in favour of the Worker, the Employer then raised concerns that the job evaluation process had been defective and that the Assessor’s findings were therefore unreliable.

The alleged defects to the job evaluation process were as follows:

When the Assessor met with the General Manager on 21 March 2023 he did not furnish the General Manager with a copy of the questionnaire upon which the evaluation was being conducted. Because the General Manager was not aware of the questions posed, he could not properly consider the answers that were given and he could not speak to the veracity of the answers. At this meeting the General Manager had a number of concerns. (a) That some of the answers to the questionnaire that had been given (as they were read out to him) were inaccurate, (b) the criteria for the grading of the post had not been properly weighted and (c) that there was inadequate consideration given to other important criteria.

At the meeting the General Manager requested the Assessor for a copy of the questionnaire and the Assessor told him that he should have obtained the questionnaire from his own staff, the Workers’ line manager. The Assessor told the General Manager that it would not be appropriate to allow the General Manager respond to answers that the Complainant’s line manager had already verified to be accurate. The Assessor said that the Employer’s position needed to be “one voice” and not diverging opinions between the General Manager and the Worker’s line manager (who it had been agreed was the correct party to verify the Worker’s answers to the questionnaire.)

The General Manager told the Assessor that he would need to review the questionnaire before he could provide his feedback and as he had neither been provided with a copy of the questionnaire nor the answers, he could not give his input.  The Assessor told him that that was not the agreed process and that any feedback that he wished to give needed to be provided through his representative. The General Manager said that the Assessor made it clear to him that (a) he would not accept any challenge or commentary about the questionnaire answers from him directly; (b) that the process had been agreed and  (c) that the process was that the questionnaire was to be answered by the Worker and the Worker’s line manager would verify whether the answers were correct (d) there was nothing in the job evaluation process to allow the General Manager to step in and question the  verification of the Worker’s answers as confirmed by the Worker’s line Manager.

The Assessor advised the General Manager that his feedback needed to be provided only through the Employer’s representative. The General Manager then told the Assessor that the representative was on leave and the Assessor told him that any feedback would need to be provided within the next few days because the report was already delayed and needed to be concluded.

The report issued eleven days later, on 2 April 2023 and during that time, because the General Manager was not given a copy of the questionnaire, because the Assessor would not agree to hear from him directly (only through the Employer Representative) and because the Employer representative was on bereavement leave until 27 March, there was no opportunity to provide the feedback that the Assessor needed to hear, before the report issued on 2 April 2023.

The General Manager accepted that he did not explain to the Assessor that the Employer representative was on bereavement leave, he had just said he was on leave.  He also accepted that he did not ask the Assessor to delay the completion of the report until the representative was back at work. He accepts that he did not contact the Assessor again before the report issued.

He contends that had the questionnaire been provided to the General Manager by the Assessor, had the Assessor agreed to hear back from the General Manager directly and not only through the Employer representative and had the Employer’s representative not been on bereavement leave, the job evaluation process might have been reliable, but because it was concluded - essentially without any input from the General Manager of the Hospital -  it was not.

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

This dispute first came before me by way of a WRC adjudication hearing on 23 February 2022 at which the parties agreed that the dispute would be referred to an independent job evaluation to determine whether the Worker’s duties were comparable to Grade 8 equivalent roles in other hospitals.

On Day 2 of the WRC Adjudication (21 November 2022) the General Manager of the Respondent attended the hearing and objected to a job evaluation being conducted on the basis that there is no agreed job evaluation process available for higher grades including Grade 8 staff. However arising from a query raised by this Adjudicator (AO) in reply to which both representatives confirmed (that in the absence of an agreed job evaluation process there is precedent for higher grade posts to be evaluated through the appointment of an Assessor who carries out an independent job evaluation assessment) the AO verbally recommended that this process take place or she indicated that she would recommend in writing that such a process take place.

In January 2023 the AO emailed the party representatives ascertain if the job evaluation process was underway and was advised that it was and that the process should be concluded by the end of January 2023. The matter was relisted for hearing before the AO on 30 May 2023.

On Day 3 (30 May 2023) the Job Evaluation Report (dated 2 April 2023) was made available to the AO.

The finding of the Assessor was that the work being performed by the Worker was like work to that of Grade 8 manager comparator in another hospital.

As the Employer now contends that the job evaluation process was defective and seeks to set aside the Assessor’s findings, I will briefly consider the Employer’s arguments in this regard and the Assessment process as was conducted.

The Assessment Process

The terms of reference of the job evaluation was agreed by the parties on 19 December 2022. The terms of reference were simple and two fold: (A) to review the role and function of the Worker versus her stated comparators or any comparator suggested by her employer and (B) to advise in respect of the above review and report before 31 January 2023.

The first Assessor suggested was not available and this gave rise to a delay in the appointment of the second Assessor, arising from which the parties agreed that the evaluation should be conducted relying on one comparator only and the completion date was extended until the end of March 2023. Both parties informed the Assessor that the process was required to be completed as soon as possible.

To establish whether the work was like work the Assessor correctly applied a methodology that is applied in equal pay claims brought under the Employment Equality Acts.

The Assessor drafted a questionnaire which the Worker was to complete and which her line manager was to sign off in terms of veracity. This process was agreed by the parties, which is significant. The criteria included, key activities; education and training, relevant experience, judgment, initiative/independent action, probably impact of errors, working with others, supervision or direction exercises, strategy, formulation and implementation, physical/mental and sensory demands and working conditions.

The chosen comparator was a Grade 8 manager with a similar job title and similar job functions who worked in a different Hospital. Again,  the comparator was agreed by the parties.

On completion and verification of the questionnaire answers by the Worker’s line manager, the Assessor met the Worker. He then met the Comparator with whom he discussed the Worker’s answers. On request from the Employer’s representative, the Assessor also met with the General Manager of the Hospital. The purpose was to outline the process to the General Manager and to inform him of what had been signed off by the Worker’s line manager.  Finally he met with the Worker again to discuss certain issues which had arisen and raised additional questions for her to address.

In his report the Assessor concluded that the work performed by the Worker was like work to her Grade 8 comparator and the differences between their work were not significant.

At the relisted adjudication hearing on 30 May 2023 the General Manager was critical of the job evaluation process undertaken by the Assessor. His criticisms were (a) that when he met the Assessor on 21 March 2023 he was not provided with a copy of the questionnaire and answers and so it was not possible for him to respond to the content therein when it was only read out to him. (b) He had objected to the job evaluation process in the first instance. To him it was clear that the Worker did not possess Grade 8 responsibilities. Grade 8 was a very senior managerial post in the hospital and the Worker’s responsibilities did not match any of the Grade 8 roles in the hospital structure (c) Having not been permitted to properly engage with the comparison exercise (by not being given a copy of the questionnaire) the Assessor’s findings that the Worker’s job was like work to a Grade 8 post, was unreliable and should be set aside and (d) As General Manager a Grade 8 Managerial Post could not be created without his sanction and such a high-level post would require to be advertised.

As the Employer’s criticism of the assessment surrounded what occurred between the Assessor and the General Manager at their meeting on 21 March 2023, I wrote to the Assessor and I put the General Manager’s criticisms to the Assessor and requested that he response. I shared this letter and the Assessor’s reply with the parties.

The Assessor replied that the process had been agreed before the assessment started. It was not a part of the process that the General Manager as well as the Complainant’s line manager would verify the Worker’s answers to the questionnaire. The Assessor met with the General Manager because the Employer representative had asked him to meet him to set out the process to him which is what the Assessor did. The Assessor said that the General Manager’s opportunity to have input to the assessment was to liaise with the Complainant’s line manager (who solely had the duty to verify or otherwise the Worker’s answers.) At their meeting on 21 March the Assessor advised the General Manager to make contact with the Worker’s line manager if he thought that any of the information was incorrect. The Assessor informed to the General Manager that he could not have diverging positions from the Employer as to the veracity of the answers given. It had to be one position. The Assessor wrote that had the General Manager explained to him that the Employer representative was on bereavement leave or that more time was needed for him to speak to the Employer’s representative, the Assessor would have allowed such time but no time was requested and no contact was made between that meeting and the issue of the report eleven days later.

Findings

I find that was for the parties to agree the terms of reference for the job evaluation process and it was for the parties to advise the Assessor if they wished for any particular process to be followed. The process was agreed by the parties and the methodology as set out at the introduction of the Assessor’s report was agreed by the parties and was followed by the Assessor.

 This process was to determine whether the Worker should be grade 7 or 8 and that one comparator would be used and that a questionnaire would be drafted by the Assessor, the questions would be answered by the Worker and the veracity of the answers would be confirmed or otherwise by her line manager. It was not an agreed part of the process that the General Manager would then verify the verification already given by the Worker’s line manager.  He could have of course discussed the matter with the Worker’s line manager before the verification took place, but he did not. The process as agreed did not allow for the General Manager to counter or amend the verification already made by the Worker’s line manager. If the Employer had wanted that to be the process, that could have been agreed before the assessment was done but that was not done.

Knowing the process was as agreed and from when it was agreed,  it was open to the General Manager to obtain a copy of the questionnaire from the Complainant or the Complainant’s line manager. It was up to him to become involved in the verification of the answers but this did not take place.

I find that the job evaluation of the Complainant’s post was correctly conducted by the Assessor.

There were a number opportunities that the General Manager had to be involved in the job evaluation process. The first time was when the terms of reference were agreed in December 2022. The next time was when it was agreed by both parties that there would only be one comparator (chosen by the Worker) as opposed to two comparators (as suggested under the previously agreed terms of reference.)  The next time the General Manager had to intervene was to discuss the answers with the Worker’s line manager (who had been tasked with the obligation of verifying the Worker’s answers to the questionnaire) or at least obtain a copy of the questionnaire from her.   It seems that none of these opportunities to participate in the job evaluation process were taken up by the General Manager.  The next time to intervene was when the Assessor met with the General Manager on 21 March 2023 at which point the misgivings that he might have had about the process, if they were not sufficiently clear to him until then, became clear to him. At this meeting if the General Manager had told the Assessor – “there are a number of defects in this process that I need to explain to you” or “an extension of time is required” or “the Employer’s representative is on bereavement leave until 27 March, and if you want me to only talk through him then you need to wait until then or else let me give you my input directly.” The General Manager took none of these actions.

Essentially what the Employer is now contending is that having agreed a job evaluation would take place and that job evaluation then having taken place in accordance with an agreed process, the report findings should be set aside because the Employer did not have sufficient input into the process, when the ability to have such input was available but not availed of.

I am satisfied that the Job Evaluation process as undertaken by the Assessor was well reasoned and based on the methodology that was agreed before the evaluation commenced. I consider that the process was conducted as had been agreed. It was not an agreed part of the process that after the Worker’s line manager verified the Worker’s answers that the General Manager could then counter that verification. It is regrettable that the General Manager appears not to have engaged with the job evaluation process until the Assessor met with him on 21 March 2023 at which point the evaluation process was nearing completion. At that point it was late but still possible for the General Manager to take steps to participate in the evaluation process but no steps were taken and no request for the Assessor to delay the process until after the Employer’s representative returned from leave was made.

Conclusion

I uphold the findings of the Assessor in the Job Evaluation Report dated 2 April 2023. I am satisfied that that the work being performed by the Worker is that of Grade 8 management post.

The Worker’s position should be recognised as a Grade 8 post and the Worker should be paid back-pay (losses arising from the fact that she was paid on a Grade 7 and not a Grade 8 level) from 4 September 2019 (being the date when she raised this grievance with her Employer.)

Regrading industrial relations complaint - Grade 7 to Grade 8.