Worker

Employer

Anonymised Parties

A catering worker

A Health service provider

Representatives

Siptu

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

IR - SC - 00001565

20/07/2023

The employee served for many years in the army before applying for and being successful for the role in catering with the respondent.  On being appointed he sought incremental credit for the time spent in the army but was only given this in relation to the period he had spent assigned to catering within the army.

 The worker, Mr A, joined the Irish Defence Forces in or about 2012. He served for 9 years and during this time reached the top of the Private 3 Star pay scale, which at the time of leaving was €43,347.72. At the onset of the Covid 19 outbreak, Mr A, and other medically trained first responders, were drafted in to assist with Covid testing. It was during this period that he became aware of a vacant post in catering at the respondent hospital.

His interest in this post was two-fold in that he had an interest in the work itself but also the fact that, as he saw it, he was moving between public service posts and his benefits, salary, pension etc, would be carried forward and preserved. He spoke to some of the respondent’s managers and from conversations he had with them, he felt re-assured that his army service would be recognised for pay purposes on transfer into the respondent’s post and he went ahead and applied for the post and was successful.

It was after taking up the post that he discovered he was not receiving incremental credit for his time spent in the Army, despite having provided verification of this to HR at the outset. He utilised the grievance procedure and submitted a formal grievance to the HR Manager by email on 14 November 2022. The HR Manager, Ms B, was on leave at this point, but a meeting was later arranged and took place between Mr  A and Ms B on 23 November 2022. The outcome issued by email on 20 December 2022, and this advised that the complaint was not upheld.

Ms B in her email referenced a respondent document "Guidelines on Terms and Conditions of Employment [March 2017] " and specifically Section 3.A General Principles, Cp16-19] highlighting specific section as outlined here.

 New appointees to any grade start at the minimum point of the scale. Incremental credit will be applied for recognised relevant service in Ireland and abroad … Incremental credit is normally granted on appointment, in respect of previous experience in the Civil Service, local authorities, health service and other public service bodies and statutory agencies, This provision is not affected by a break in service.

On the 23 December 2022 Mr A appealed the outcome from the Stage I to Mr C. On the 24 January 2023 Mr C replied initially to advise that he had escalated the appeal for national advice and later on same date, issuing a further email referring Mr A to " National financial regulations NFR 3 Subsection 3.46" which he said dealt with "previous relevant service", and querying Mr  A’s experience.  Mr A provided this information by return, outlining his 9 years as a private with the Irish army.  On the same day Mr C replied to say, he was not upholding Mr  A’s appeal, and in doing so he specifically stated that it was difficult to envisage that the work of a private in the Army could be described as "like work".

Mr A argued in response that having checked the regulations as quoted by Mr C, he could find no reference to the requirement for previous service to be "like work".  This term was not to be found in the regulations, despite Mr C making clear and particular reference to this.

Mr A had in his appeal document of 23 December 2022, raised a further pertinent point, and he again pointed to this in his response to Mr C on the 24 January 2023, this being that he was aware of community swabbers in the area who he said had been awarded incremental credit for previous service in, for example, the Local Authority Fire Service, one of these being a mechanic.

On 1 February 2023 Mr A contacted higher level management by phone and later followed this with an email outlining his position.  On 22 March 2023 SIPTU contacted Mr C seeking copy of the section referenced in his decision to reject Mr A’s appeal. The matter remained unanswered and was therefore referred to the Workplace Relations Commission on 20 July 2023.

In the first instance Mr A was confident of his entitlement to benefit from service accrued in the Irish Defence Forces, based on the information he had received while working as a community swabber during Covid. He believed others who were drafted into this role, like himself were being given recognition for time spent in another public service job, which he understood to be unconnected to their current roles as swabbers, e.g., fire service personnel. He made his application for the Catering Job armed with this knowledge. 

While the Appeal decision was clearly based on the term "like work" this condition was not specified in any of the regulations quoted by the respondent. The respondent’s guidelines on Terms and Conditions of Employment document Section 3 deals with Incremental Credit and Starting Pay on Promotion. There is no mention of "like work" but "recognised relevant service" is mentioned, however this seems arbitrary, and we have not been provided with the specific criteria that is to be applied in this regard. If for example time spent working in an unrelated role, with the Fire Service or Local Authority can be reckonable for pay purposes when such personnel are transferred to a medical role with the respondent then why would a private in the Irish Army be excluded from this same benefit. The respondent has not addressed this question and it has simply been ignored. That is not good enough and a former soldier of this state, must not be treated differently in circumstances where such treatment results in financial loss to him. This is not an insignificant loss [approx. €4046].

Mr A did have Catering experience in his army role, and while this has been partly recognised (1 year) this is too little and unsatisfactory in the circumstances.

In June 2021 the respondent advertised for a Catering Assistant Panel. The Job Specification included the salary. The complainant was successful and was offered a position. The offer made to him included a Verification of Service Form. This completed and verified form is used to determine what if any incremental credit will apply.  In his application form, Mr A made no reference to a catering/kitchen role in the army.

Mr A queried the entitlement to incremental credit and was advised if he had been assigned to catering during his time in the army this would be reviewed.  He subsequently provided evidence of having worked for 17 months in such a role and was therefore appointed to point 2 of the Catering Officer scale.  He signed a contract with this stipulation.

When Mr A raised a formal grievance guidance was sought nationally and the respondent was informed that their interpretation of the rules covering incremental credit was correct and therefore his grievance was not upheld.  The respondent was informed by the national body that;

‘Reckonable equivalent service is determined on a like with like basis to the role into which a candidate is being appointed’.

The respondent has applied the rules governing incremental credit on first appointment correctly.

In conducting the hearing, I have taken into account all relevant submissions presented to me by the parties. I am satisfied that the respondent acted in good faith and applied the ‘national’ rules covering incremental credit in that sector.  They sought assurances in relation to that interpretation which were duly provided.

However, it is of note that different sectors within the public service apply different rules regarding incremental credit.  Some may give partial credit if the experience garnered by the new appointee in a previous role was somewhat relevant but not identical to the new role.  The respondent’s scheme is different insofar as it is an ‘all or nothing’ situation ie. either the experience is ‘like’ (identical) or it is not considered relevant.  It was for this reason that the respondent only credited Mr A with his time in the army spent working in catering.

Why give incremental credit?  Internally it is in recognition of the fact that, generally speaking, wages tend to be inflexible downwards i.e. it is unlikely that any employee will be happy to transfer to another role in the organisation and take a lower salary.  This can often result in ring fenced agreements where it is to the benefit of the organisation that the employee transfer from an existing role.  Internally, the respondent always gives full incremental credit to its own employees when taking up a new role.

The second business case for granting incremental credit is in recognition that the experience which the employee has gained, whether in the same organisation or elsewhere, will have resulted in competencies which will be valuable in the new role. At the hearing Mr A provided evidence of having relevant experience in and having competence in, communication, following guidelines, GDPR, Hygiene and Food regulations, which I think would be very relevant to the new role in Catering to which he was appointed.   

The relevant section of the scheme relied upon by the respondent states as follows;

New appointees to any grade start at the minimum point of the scale.  Incremental credit will be applied for recognised relevant service in Ireland and abroad (CL cited). Incremental credit is normally granted on appointment, in respect of previous experience in the Civil Service, local authorities, health service and other public service bodies and statutory agencies…

Of particular note in relation to this section is that the requirement is relevant service and not like work.  The latter is an interpretation or clarification of the regulation given to the respondent from a national source.  From the evidence given at the hearing it seems that the interpretation is either all or nothing i.e. that the previous work is the same as the new role and that, if it is similar only in some respects, it is not open to the respondent to give partial incremental credit.  This seems to me to be an unduly rigid interpretation of the regulation in this instance and could mean that a member of the defence forces might very often encounter insurmountable obstacles in achieving any incremental credit with the respondent on taking up a new role.  A broader interpretation would be desirable which might include partial award of incremental credit relating to competencies achieved in previous service in the army or elsewhere.

I note that Mr A has since moved on and his loss is not accumulating further.  I am therefore recommending that he be given partial recognition for the competencies he achieved while in the army, that were relevant to his new role with the respondent.  I recommend payment of the sum of €2,500 in final settlement of this dispute.

Incremental credit