ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000418
| Worker | Employer |
Anonymised Parties | A Caretaker/Porter | Public Body |
Representatives | Siptu Trade Union | Human Resources Manager |
Dispute:
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 - 00000418 | 30/06/2022 |
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Date of Hearing: 20/09/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The Worker contends that the Employer has not complied with an agreement reached between the parties in 2009 and despite many attempts, the matter has not been resolved.
Summary of Workers Case:
The Worker was employed as a Care Attendant in Welfare Home ‘B’ which subsequently closed in 2008 after it was deemed unsafe and he transferred to another location. An agreement was made in 2009 that he would co-operate by taking up additional duties and the Employer would incorporate premiums and make salary and grade adjustments. It is argued that the Employer did not comply with their part of the agreement. A Rights Commissioner recommendation in 2013 held that he had a valid complaint and that the matter should be resolved by January 2013. No resolution was found and a Conciliation meeting also ended with no resolution. The Worker seeks for the Employer to fully comply with the agreement to make salary and grade adjustments and compensation for the stress involved.
Summary of Employer’s Case:
The Employer refutes the argument that it has not complied with the agreement and the original agreement is in place. He is employed as a Health Care Attendant and is due to retire on 8 July 2024. He was employed in Welfare Home ‘B’ and was on shift duties when the home closed in 2009 due to fire risk issues. Staff were redeployed/transferred on an individual basis according to their preferences. An individual agreement was reached with the Worker in this case in June 2009. There was a provision in the agreement that premium pay be incorporated into salary and grade change subject to further discussions.
In 2012 the Employer advised that it could not accede to a request from the Worker and his Union to incorporate allowances and premia into salary and grade change. This was due to the PSA 2010-2014. The matter then was subject to a Rights Commissioner Recommendation which recommended the matter be resolved by 31 January 2013.
The Employer then sought to transfer the Worker to a HCA role in Hospital ‘N’ which it was considered would regularise the Worker’s position, salary and grade. However the Worker turned down the offer.
In 2015, the Worker and his Union sought again to have the salary and grade altered to incorporate the premia. The Employer advised that current arrangements could not be altered unless in line with current collective agreements and policies and procedures.
The Worker works as a Porter 8-4.30 Monday to Friday. The breakdown of his pay shows substantial premia for night duty, and holidays and public holidays, all reckonable for pension purposes.
He receives premia for Saturdays, Sundays, Holidays and Public Holidays, even though he works an 8-4.30 shift which does not carry premia.
In 2020, Job Evaluation upgraded the Worker on the HCA grade even though he does not carry out the duties of a HCA.
In late 2020 and twice in 2021, the Worker and his Union sought compensation for sums ranging from €30,000 to €50,000.
In summary, the Employer has attempted to engage with the Worker a number of times to resolve this dispute. He was compensated for relocation by way of receiving the HCA salary and allowances even though he was not carrying out the duties of the HCA. He has been adequately compensated and not disadvantaged financially.
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Following the closure of the Welfare Home, the Worker had an agreement with the Employer that he retains his Terms and Conditions in relation to Saturday and Sunday premia and Public Holiday and Holidays premia. The clause in the agreement which is the cause of the current dispute is: “It will also be our intention in the near future to incorporate the above premiums in a salary adjustment and a grade adjustment and this will be the subject of further discussion”. The Employer attempted to regularise his position by offering him a transfer to another location, but technically did not abide by the intention in the agreement to incorporate the premia fully into salary. The Worker steadfastly refused relocation and continues to refuse any possible relocation. He referred to a post traumatic stress disorder which he stated the Employer was aware of. He stated that he was assured by the HR and ER Managers at the time of the agreement that he would not have to go into a patient facing role again. I note that many of the allowances and premia are reckonable for pension purposes. I also note that the Worker received an upgrading on the HCA role even though he does not perform the duties. In the circumstances, and in light of the fact that the Worker is due to retire mid-2024, I recommend to bring this long running dispute to a close, the Worker accepts that his grade will not be further changed, however the allowances and premia will be taken into account in his pension. For their part, the Employer should offer the Worker the sum of €10,000 compensation for the technical breach of the agreement. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. To bring this long running dispute to a close, I recommend the Employer should offer the Worker the sum of €10,000 compensation for the technical breach of the agreement.
Dated: 15/11/2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Dispute over incorporation of allowances into salary. |