Worker

Employer

Anonymised Parties

A Bank Employee

A Bank

Representatives

Unite the Union

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 - 00000066

12/04/2022

The complainant was promoted on a Specified Purpose Contract (SPC) at a grade above her substantive grade which ran from January 2018 to April 2019, and she performed well in that role. In April 2019, another role at that level became available in another section due to maternity leave, and she was moved into that role on a SPC to cover the vacancy. She was working at the higher level for two full years from January 2018 to December 2020, in two separate roles.

The complainant performed well in the role, and got her increment during the period of the SPC as well as being offered a second role at the same level.

At no point did management indicate that her performance was unacceptable. Normal conversations took place about improvements to performance, and she was never placed on a Development Plan or Performance Improvement Plan; the usual tools used to manage and improve performance, if required.

In 2020, the Bank dropped performance ratings, partly as a result of the pandemic impact. Performance reviews were still carried out, but ratings were not applied. Inlate2020, the division’s attitude to the complainant changed and they determined that she had not been performing to a sufficient standard to continue at the higher level.

A vacancy came up at the higher level in late 2020, and she was told that she was not eligible to apply for this role under HR policies (we have been unable to identify which policy states this), and it was stated that she could not apply for a transfer at the same grade, due to not being permanent at the higher grade.

Near the end of her SPC term, she was informed that she would revert to her substantive grade, as thereasonfortheSPCnolongerexisted.However,thepersononmaternityleavewhoshewas covering did not return to her previous role (and moved to another role on return from maternity leave).

It is clear that the SPC continued to exist. A number of weeks after being informed that the SPC had come to an end, the higher role was advertised as a permanent role. The complainant applied for the role and was not successful.

After reverting to the basic grade, she continued to have the same task list as at the higher level, and she continued to carry out these tasks (details submitted) at the lower grade from January 2021 until September 2021, when she moved to another division. The Bank is attempting to suggest that her tasks were set at a lower level than others but the tasks remained consistent throughout the period, and her performance was rated as a performing rating, and an increment was awarded.

The complainant was treated in a very unfair manner, because she was doing the job in a satisfactory manner, but was then demoted to a lower grade, and the job that she had been doing was re-advertised.

The demotion to the basic grade had a huge impact on her from a salary perspective, as her salary dropped incurring a substantial loss of €11,454 per annum.

The complainant  raised a grievance under the Bank’s Grievance Procedure and requested that an  independent person consider the matter, However, the bank decided to appoint her own division head as the decision maker in this case . 

It would be quite unusual for a someone to be demoted from one grade to another, andherowndivisionheadwouldhavebeenwellawareofthedemotion,anddirectlyinvolvedinthis decision.

Therefore, the appointment of her division head as the decision maker was unfair, and not in line with normal fair procedures and the rules of natural justice. It would be extremely difficult for the division head to go against the earlier decisions of her own management team in this case, and therefore her impartiality is questionable.

It is also worth noting that in her decision, she considered the complaint about not being allowed to apply for a position at the same grade under purposeful mobility rules to be outside the scope of her considerations, because it was a HR Policy, suggesting that her considerations were limited to looking at the actions of her own division. As already referenced, we have been unable to identify which HR Policy covers this aspect.

The complainant  performed satisfactorily in her two roles at the higher level, as evidenced by written reports from her own management. Her performance reviews did identify areas to improve, but this would not be unusual for any performance review.

If the division had serious concerns about her performance at the grade, it would have been appropriate to assist her in her development, as regularly promised but never delivered, in order to give her a chance to perform at a higher level. The criticisms of her was very subjective and covered things like not being vocal enough in meetings and not taking on ad-hoc tasks. However, her role was extremely process driven, with set daily and weekly task lists to be completed, and it would seem that more objective assessment of these tasks should have been possible.

Clearly, as the end of her SPC approached, the division had decided that she was not of the same standard of performance as other peers at the same grade, even though she was performing in a satisfactory manner. The SPC was terminated, even though the requirement to fill the role still existed, and an artificial mechanism was used to advertise it as a new role. The Complainant felt that this was very unfair on her, and she felt demeaned by being demoted, while being expected to continue to carry out the same role. She also experienced a substantial drop in pay as referenced above.

The complainant appealed under the Grievance Procedure, but does not believe that this process was fair, objective and independent, mainly because it was carried out by her own division head, despite her request for an independent person to consider it.

We ask that the WRC support the complainant’s case that she suffered significant financial loss as a direct result of her return to the basic grade, despite that fact that she continued to perform the duties of the higher grade. This, together with the fact that SPC continued to exist and that the higher role was advertised as a permanent role.

The complainant commenced employment with the Bank in December 1998 as a Bank employee at the Bank Officer (BO) level.

She  was promoted on  January 15th 2018 on a Specified Purpose contract (SPC). Notwithstanding this was a Specified Purpose contract it was anticipated to end January 2019.

The purpose of the specified contract at that time was to cover for another staff member. This project was then extended and the complainant ’s contract  was also extended.

Following other changes the complainant’s position  was displaced but her role was extended to provide further maternity leave cover..

In March 2020, the Covid-19 pandemic hit and the respondent  Business Continuity Plan was activated.  The complainant  was covering a maternity leave at that time and therefore her contract continued until August 2020 due to the extended Maternity Leave of the individual she was covering.

In June 2020, the staff member returning from maternity leave was reassigned to a different role and a request was made to extend the complainant ’s contract until the end of the year due to the significantly increased workload and to mitigate risks for the Division.  Given the challenges faced by the Bank and that department in particular with Covid-19, it was given scope and budget to extend the complainant’s BE SPC contract for an additional period to end December 2020, which was communicated to her.

The reversion of employees to their previous grade at the end of their fixed term or special purpose contract is set out in a comprehensive agreement between the Bank and the trade union, Unite. This formal agreement (submitted) was signed on December 5th, 2013 and remains the only agreement covering the use of FTC and SPC contracts within the Bank.

The complainant , a member of Unite seeks to circumvent the terms of that agreement in an effort to retain a grade/salary to which she is not entitled either through the nature of her role or under the terms of the comprehensive collective agreement between the Bank and Unite.

The arguments put forward by Unite have changed. Initially it was argued that on expiry of the SPC, the complainant continued to perform the full duties at the higher level. This claim was neither supported by the facts or the objectives that were set. The complainant was placed in a temporary Bank Officer role until such time as she secured a permanent role at her original grade within the Bank.

This was the basis for the initial grievance which was rejected. The expansion of the claim to refer to performance appraisals and

The complainant  secured a permanent position on  September 22nd, 2021, and has remained there to date.

Notwithstanding the fact that this claim was initially based on a contention that the complainant  was reverted to her basic grade while continuing to perform the role at the higher grade, the union has introduced new elements unconnected to the operation of the SPC and the factual reason for the ending of the SPC in accordance with standard practice and in full compliance with the collective Agreement.

These are mainly issues related to performance, the nature of the work and increment progression etc on which a detailed written submission was made, and which it is not necessary to replicate here for reasons set out in the Conclusions)

Also the assertion that there has been a change in attitude towards the complainant is rejected.

The complainant  was employed under a Specified Purpose Contract, in accordance with the terms of a collective agreement between the Bank and the trade union.

Under the terms of that agreement she was returned to her previous grade on the expiry of the SPC. The complainant applied for and was unsuccessful in an open competition for the higher level role and was subsequently successful in securing a role at her substantive grade.

There is no merit to her contention that she is entitled to hold the temporary grade and salary on an ongoing basis. Concession of this claim would create a precedent which would render the backfilling of roles for maternity leave unworkable and would have the effect of denying internal candidates an opportunity to apply for these roles as the Bank could not allow a situation to develop whereby employees held a higher grade in perpetuity.

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

The facts of the dispute are well set out above and, in their core elements, not in dispute.

The complainant was appointed to ‘act up’ (on a specific purpose contract) for two consecutive periods at a higher level and in due course (and there is some argument about these particular circumstances) required to return to her initial grade despite, according to her union, having performed satisfactorily up to that point.

I accept that the circumstances of the expiry of the acting up period were not as neat and tidy as would normally be the case when a specific purpose is fulfilled and comes to an end, but this was in some measure attributable to issues related to the Covid-19 pandemic.

However, nothing turns on this.

At the core of the complaint is the principle as to whether a person acquires any rights arising from a contract such as this, and from being in an ‘acting-up’ role. Of course, a person may acquire such rights arising from a succession of fixed term contracts, but this complaint is not based on such qualifying facts or that legislation.

There was a good deal of argument about how she performed the role, (which an external, WRC Adjudicator is in no position to assess), but even this is not relevant to that core principle as to whether any rights arise from even the most successful discharge of the temporary function in this case.

The experience of acting up may of course be very useful for the future (although so far in this case it has not proved to be, but it is too early to conclude that it will not be), but that is a different matter.

The remedy sought by the complainant is a little unclear. There was reference to loss of earnings and an implication that she should be appointed to a higher level position on a continuing basis. Her internal grievance sought that she be ‘regularised’ in the position at the higher level. This was partly on the basis that she continued to perform the work at the higher level.

The Grievance decision maker concluded that she did not. There was some criticism of the failure to appoint an external reviewer for the grievance.

I can see no reason to take issue with the objectivity of the person who reviewed the grievance.

It went to detail regarding the complainant’s work and required someone with a degree of familiarity of those operations to assess it.  In addition, the decision maker’s conclusions and her reasons for reaching them are reasoned and transparent, and, apart from whether there should have been an external decision maker they were not disputed on their merits.

The respondent submitted, as will be seen above that it is bound by collective agreements in relation to the filling of vacancies. It is also a body within the general orbit of public service HR policy and the possibility of stepping outside the requirements of either of these constraints takes no account of those realities, nor is it well founded on its merits.

To justify a claim based on loss of earnings, a complainant would have to make out a case that they established some rights in respect of the position to which this relates.

Whether based on considerations related to the employment contract or established everyday HR practice or good industrial relations considerations this is neither well founded in equity nor realistic in practice.

It is not sufficient to ground a complaint that this level that a person has been disappointed with a particular set of circumstances. They must make out a breach of their rights, which the complainant has failed to do.

Accordingly, the complaint is without merit and is not upheld.

Acting up position