ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: ADJ-00047592

Parties:

Dispute:

Date of Adjudication Hearing:  23/08/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 26th November 2021.  There was no objection by the Employer to an Adjudication Officer of the WRC investigating this dispute.  Following delegation to me by the Director, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a face-to-face hearing at Lansdowne House on 23rd August 2022. The Worker represented himself and was in attendance.  The Employer was represented by IBEC and a number of witnesses were present in the event that their evidence was required.  Comprehensive written submissions and supporting documentation was received on behalf of both Parties.  As the Parties are entitled to anonymity, I direct that any information that might identify them within this recommendation should not be published.

Summary of Worker’s Case:

It is common case that the Worker was employed as a Care Worker by his Employer, a Charity from November 2015 until his resignation in April 2021.  He had been subject to a disciplinary process in 2019 leading to a first written warning which was upheld on appeal.  In the course of this process, he raised a grievance against a manager and in the ensuing investigation, sought to rely upon redacted data pertaining to a service-user which he had accessed internally and compiled.  His grievance was not upheld and he was subject to a further disciplinary process arising from his accessing and/or using the data for this purpose which the Employer contended was in breach of its workplace policies.  He was issued with a final written warning which was upheld on appeal.  He contended that this action was unjust and subsequently resigned.

For the purposes of this dispute, the Worker contends that he did not receive an increment in salary for 2020 which he would have been entitled and seeks compensation in lieu of same.  When he had queried this with the Employer in March 2021, he was informed that employees under disciplinary sanction did not receive salary increases.  Whilst he accepts that he was subject to a first written warning at the time, he contends that the Employer’s Disciplinary Policy clearly stated that a staff member could be subject to four stages of sanction or “as an alternative to the stages.... (The Employer) may take other forms of disciplinary action including: Deferral of pay increases”.  When he had queried this he received the following reply: “The Disciplinary Policy is currently under review and will be updated to reflect this change”.  Accordingly, he submits that as he should not have been subject to both sanctions, he should have received the increment.

Summary of Employer’s Case:

The Employer contends that the Worker was not eligible for a salary increment in 2020 or thereafter in line with its ‘Banding Increase Guidelines’ introduced in 2018 because he was subject to a first written warning which expired in December 2020 and a final written warning which expired in July 2022.  The Banding Increase Guidelines expressly provided: “Where an employee is in receipt of a warning, increase will be held.”  As communicated to the Worker on 11th May 2018: “salary reviews are always dependent on funding available, satisfactory performance and are not guaranteed each year.”  Accordingly, salary increments were discretionary and not guaranteed.  A memo had also issued on 18th June 2019 and 11th November 2020 to all line mangers and was communicated to all employees clearly setting out the exceptions to the granting of salary increments including: “Someone who is on a written warning or a Performance Improvement Plan (PIP) under the Disciplinary process.”  This Policy was agreed with the Union and superseded all previous Policies.  It is normal custom and practice that employees with a live disciplinary sanction on their file do not benefit from salary increments, backdated or otherwise as would be common practice in most organisations to incentivise and reward ongoing performance improvement.

Findings and Conclusions:

In circumstances where the Worker was subject to a first written warning at the material time, I am satisfied that the Employer was acting within its discretion to withhold his salary increment for 2020 in line with its ‘Banding Increase Guidelines’ which have to be read in tandem with its Disciplinary Policy.  This expressly provided that salary increments are subject to various factors including satisfactory performance and excluded employees subject to a written warning as clearly communicated in writing to the Worker. 

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  For the aforesaid reasons, I recommend no concession or further action in relation to this dispute.

Dated:   13th September 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard