ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00000773

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing: 19/07/2023

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 dispute concerns retrospection of a pay claim conceded in 2022.

Summary of Workers Case:

The issue in dispute of retrospective pay which has not been resolved to the Worker’s satisfaction in line with LCR 22135.  That recommendation by the Labour Court gave a pay increase to a colleague with whom the Worker in this current case has exact parity.

The Worker commenced his employment with the Employer in 2004 as a maintenance/driver. This role involved tasks and responsibilities inclusive of general maintenance of buildings and groundworks which consisted of the following:

• Cutting lawns/Painting/Maintaining footpaths and the general areas clean and tidy.
• Driving service users to appointments and for shopping. was responsible for the undertaking of management of emergency maintenance issues and planned preventative maintenance controls.

Responsible for the management of the service utilising external contractors which encompassed health and safety management and compliance with work permits for same.

• General maintenance and compliance of all firefighting equipment/provisions including the updating of all associated documentation controls in the fire register.
• Responsible for the maintenance of building repair works which entailed building fabric, electrical and mechanical services, utilities and grounds.
• Tendering process with external contractors in securing quotes for works.
• Management of the transport servicing and repair of vehicles as required and induction/training of drivers in the use of wheelchair ramps. The undertaking of all administrative work associated with transport.
• The conducting of Fire drills on a weekly basis including the up to date recording and administration of the Fire Register and maintenance folders as set out in accordance with policies.

In 2015, the Worker commenced to express and outline his concerns with the significant changes imposed to his original workplace practices that had been added to over the years. Through engagement with the appropriate service manager, he highlighted that the increased responsibilities and duties were outside of his substantive role and the responsibilities set out in his contract of employment. 

He again highlighted the significant changes and increased workplace tasks and responsibilities through the new service manager at the time in January 2017.

In January 2019, through discussions with the service manager he highlighted the differential in pay in regards to the role he is currently undertaking to date, in comparison to his awareness of another employee carrying out the same role in another service, which was agreed to be escalated and actioned by the manager.

The matter was still left unresolved and it was agreed by the service manager to put a “position paper” together in order to address the difference in pay and escalate this through the Regional manager. In September 2020 the Worker received an email correspondence from the service manager who outlined that HR would follow up on the matter.

Given these circumstances and notwithstanding the passage of time that had lapsed in trying to find agreement in regards to his role and his claim for pay parity, the Worker initiated the grievance procedure in October 2020. The outcome of which was for a proposed pay increase effective from 1st January 2021 whereby he would be aligned to the Admin 3 grade at point 10 of the scale.

Following a previous Labour Court Recommendation (LCR 22135) made on 18th November 2019, the Worker was further aggrieved that the company had not applied the maintenance pay scale contained in the ruling. As set out in the Court ruling, the Worker has for a considerable period of time, undertaken the same additional role and responsibilities from 2016, and sought clarification as to why these terms were not applied to him in recognition of the fact that he was undertaking and fulfilling the same role as the claimant.

The matter of pay parity in line with the (LCR 22135) was formally agreed in June 2022, which placed the Worker on point 3 of the Chargehand Craft scale effective from 11th May 2022, but he did not accept this as a full and final settlement of his claim for retrospective pay.

The Worker has worked professionally, diligently and beyond his current role as maintenance/driver since his employment commenced in 2004, this is despite the fact this matter and claim for retrospective pay has not been resolved to his satisfaction. There is no dispute in relation to in him being awarded pay parity as set out in the (LCR 22135) which also recognises the role and responsibilities that have been undertaken by him for a considerable period of time.

Summary of Employer’s Case:

The history of the Worker’s pay reviews and requests for pay increases was outlined. He received a pay increase from €15.00 ph to €15.92 on 06/05/2016; and from €15.92 to €17.76 ph on 01/01/2021.  He subsequently sought back money on his pay increase on 01/01/2021, and his Regional Manager responded on 03/09/2021 confirming that he had accepted the offered pay increase effective from 01/01/2021 and there was no retrospective payment due.

On 19/10/2021 the Worker replied that he felt LCR22135 would apply to him. The Regional Manager responded that she would need to check this and revert, and subsequently responded that this Labour Court Recommendation only applied to one specific individual. He escalated his grievance, and was asked to outline his claim. He confirmed he was seeking a pay rise of €5 per hour on his current salary. He also confirmed he was seeking €5 ph back-dated to 01/01/2015.

It was confirmed to the Worker that the Grievance Procedure does not cover claims for improvements in existing terms and conditions of employment. Therefore, the increase in current pay cannot be dealt with under this policy. It was explained to him that his claim for back-pay of €5 per hour was €67,830, and he was asked if he could share a breakdown of his calculations in advance of a meeting. At a meeting on 11/3/22 it was explained to him that his claim for back-pay to 01/01/2015 was in the context of him having accepted increases on 06/05/2016 and 01/01/2021 with no back money being included. It was explained that one party in an agreement expects the other party to honour their agreement.   Regardless of whether the Worker  later perceived someone else may have received a “better deal” it does not release the parties from the agreements of 06/05/16 and/or 01/01/2021. The finding on that grievance pointed out to him that although he may have wished for higher increases, that fact that different Service Managers pursued pay increases for him is testimony to their appreciation of his work. On this basis, his Service Manager (AJ) had been asked to talk to him about a pay review based on parity with Labour Court Recommendation LRC22135.

Claim for parity with LRC22135.

The Service Manager (AJ) and the Worker met on 11/05/2022 regarding his claim for parity with the quoted Labour Court Recommendation (LCR). Following this meeting, the Regional Manager (DD) proposed for him to be moved to the Chargehand pay scale. She reminded him that LCR was for increments to be applied when they fell due, and his 2022 increment was not due until 06/11/2022. In the case of equal parity with the LCR, he would not move onto point 3 of that scale until 06/11/2022. However, it was proposed to bring his increment date forward to 11/05/2022 to place him on this 2022 Pay Point 3 six months earlier. He was reminded that he had sought parity with the Labour Court Recommendation in which subsequent increments were applied on their due date. Instead, this proposal exceeded that by bringing his increment forward by 6 months. It was explained to him that another aspect upon which parity had been exceeded, is that the new pay scale was being applied from the date he made his pay claim; which he did not make until 11/05/2022. This is also significantly superior to the parity sought in his claim. It was explained that the comparator he stated he wanted to match in his own pay claim, had made their pay claim 2 years before Labour Court heard their case on 23/10/2019. The subsequent LCR back-dated the other person’s pay increase to 01/11/2018. This was back-dating it by 1 year, which was actually 1 year after their initial pay claim had been made (which was 2 years previous to the LCR). That claimant’s backdating was 1 year after their initial claim. In contrast, in this current case the Worker’s pay increase is backdated to 11/05/2022, the exact date his pay claim was made.

Stating unhappiness with pay since 2016 and seeking back pay to 01/01/2015 cannot override the fact that the Worker made an agreement on 01/01/2021 (and 06/05/2016). He confirmed he obtained advice before his agreement was made, although he subsequently stated that based on this advice his agreement was not made in good faith on his own behalf. An assertion by him that he did not make his part of the agreement in good faith, does not exclude the other party from the protection of that agreement. The relevant date is not the date he thought about pursuing a pay claim, or might wish he had made a pay claim. His pay claim was not lodged until 11/05/2022. 

The Worker did benefit because the pay increase was awarded from the date his claim was made and his increment to Point 3 was brought forward by 6 months.

He did benefit because the pay increase was awarded from the date his claim was made. His comparator lost 1 year on this aspect.   His comparator had to wait for 6 months after the LCR, putting the Worker in this case ahead by 1 year on this aspect. Conclusion his request for parity with LCR 22135 has been met or exceeded.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend a sum of €2,000 be offered to the Worker in full and final settlement of his dispute.  

Dated: Friday 29th September 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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