Worker

Employer

Anonymised Parties

An Administrator

A University

Representatives

 The Irish Federation of University Teachers IFUT

 Director of Human Resources

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 - 00002157

24/01/2024

On 24 January 2024, the Union submitted details of a Dispute between their Member and the University.

On 19 February 2024, the Employer committed to engaging in an investigation of the Dispute at Adjudication.

This case comes to hearing following an in-depth IR Pathway by both Parties and both Parties indicated that there was keen to reach a lasting resolution in the matter.

Both sides were ably represented. Both sides furnished detailed written submissions.

The background to this case is of a Dispute within   live employment which continues to the present day.

The Union outlined the dispute on behalf of the Worker, who is assigned to a specific area of learning at the University. The Worker commenced work at Grade 4, Senior Executive Officer, SEO on a part time basis in 2004 and moved to full time work in 2013. She is very committed to the continued success of the Dept.

The Dispute arose following a conversation between the Head of Dept and the Worker in April 2017. The Worker was offered an opportunity to become the Depts Instructional Designer by the Heads of Dept. The Worker accepted verbally and understood that her access to the Grade 5 position would have to be prefaced by completion of a master’s Programme.

The Union outlined that the Worker wished to be associated with probity and integrity of appointment and prevailed on the Dept leads to issue an expression of interest to others within the Dept.

This was issued on 22 May 2017. No expression of interest followed.

The Worker contended that she had commenced the role, endorsed by the Dept in August 2017.

The Worker worked full time in the role from October 2017 and July 2019 and engaged in a number of extracurricular projects, while continuing as a Part time Lecturer.

The Worker was the go-to person for IT support for colleagues.

The Worker continued in receipt of Grade 4 salary and presumed the Grade 5 level would follow.

During the third quarter of 2019, the Worker was informed that the Dept did not need the role of Instructional Designer as some of the education programmes had moved to another school.

The Parties engaged in January 2020 and in March 2020, the Worker agreed to accept the position of Programme Co Ordinator, under protest, pending a referral to the WRC.

The Worker remains in this position. Grade 4.

The Union is seeking a resolution in this dispute which would provide for the workers return to the Depts Instructional Designer with appropriate retrospection.

The Union has contested the University declaration that the worker was not promised this position by 2023, the Parties engaged in another localised attempt to resolve this Dispute.

However, the Employer’s stated position was not accepted by the Worker.

1.       The Employer denied giving a commitment that completion of master’s would result in appointment to the position of Instructional Designer.

2.       This was just not possible under Section 12 of the Financial Emergency Measures in the Public Interest Legislation, as this prohibited upgrades.

3.       Any promotional post would have to be advertised.

The Worker expressed her disappointment at recruitment practices and the impasse, and the Union referred her case back to WRC.

The Union accepts that the Worker had not secured a letter of comfort on her “upgrading “to Grade 5.

The Union was relying on the May 22, 2017, expression of interest as record.

The Union pointed to the scope available to the Dept to resolve the matter within the budgetary development plan, which provided for budgeted costs for the role.

The Union requested that the Adjudicator take time to consider the workers completion of a master’s Programme in 2018, taken in tandem with a high level of mobility within her appointed post and the extra duties that she took on as testament to her planned succession to Grade 5.

The Unions preferred resolution centred on a Recommendation that the Worker be regraded to Grade 5 with local agreement surrounding her role and responsibilities. 

The Employer operates a University and has disputed the claim made.

The Employer representative gave a background on the workers joining the Dept following a completion of M. Sc in 2004. Various part time positions followed 11 November 2013, when the worker commenced appointment as Programme Co Ordinator at the Dept on a fixed term basis for one year and subsequently a contract of indefinite duration issued.

In 2017, the Worker took study leave for education purposes and she was replaced on a part time basis.

Ongoing discussions opened on the workers career pathway in online course delivery and the Worker committed to completing a fully supported Masters in Technical Communication and E Learning. This was completed while the worker worked on the development of online modules.

By 2019, the Worker queried whether the Instructional Designer role would be advertised within the Dept.? The Dept confirmed that they were not pursuing this role and sought to engage in a discussion on alternative postings.

The Employer engaged with the Union and when a Programme Co Ordinator role was proposed at Grade 4, the complainant sought a commensurate upgrade.

This was not possible for the Employer and the Parties accepted that the Worker would commence the role in April 2020 under protest.

The Worker relocated to a new Programme Co Ordinator position in July 2021.

The Parties were unable to resolve the dispute locally and returned to the WRC Adjudication Service.

The Employer Representative denied that the Worker was promised appointment to the Grade 5 position. He argued that the Employer was curtailed by Law and Public Pay Policy to make such an offer. Universities Act, 1997.

Approval for new posts fell within the remit of a staffing subgroup of the University Leadership team, mindful of the employment control framework.

The Employer contended that the University had hosted three competitive promotion processes since 2017, where the worker was eligible to apply.

There were other opportunities to compete for the Instructional Design Grade around the University.

The University expressed an anticipatory anxiety surrounding the potential for repercussive claim and contended that cost increasing claims for improvement in pay terms and conditions are prohibited by National Agreement.

They concluded that a collective claim lodged by IFUT and SIPTU to review and upgrade the Programme Co Ordinator’s was currently underway. The Worker was a participant of that process.

The University requested that their stated position be accepted at hearing.

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

As disputes go, I am sure that the Parties will accept that this Trade Dispute falls into a higher level of complexity and carries with it an immediate need to be resolved.

The issue at the centre of the case, which is the conversation which took place between the Parties in April 2017 and subsequent circulation of the expression of interest dated 22 May 2017 occurred over 7 years ago.

 In Industrial Relations terms, this is a lifetime.

 In the Workers presentation, she has contended that her career progression has been unfairly halted. She has been resting in a position not really desired, under protest awaiting the outcome of this process.

 In the Universities presentation, they contend that no legitimate expectation could have been taken from the energetic pursuance of a broader emphasis on blended/online learning over 2017-2019 and the College should be respected for having to change Direction on a compilation of a workforce plan.

For my part, I listened carefully to each Party, and I have found a protracted and profound impasse in this area.

It is my honest opinion that both parties must take some responsibility for the parts they have played in where they are now.

I can accept that the Worker had an understanding that by taking on the duties of an Instructional Designer and completing a master’s that she would be automatically appointed to the higher grade in a much-desired position.

 However, she did not protect herself by obtaining these assurances in writing. Therefore, she acted to her own detriment in that regard, from which learning must follow.

She did the additional duties without seeking further pay at that time. I have not been provided with the documents that fed into the internal grievance, however, I am clear that the worker holds an unshakeable belief that she was upwards mobile in the direction of a Grade 5 position from April 2017.

It is always very difficult to fight a rear-guard action and that is what has happened here.

I accept that this is the Workers reality.

It has been impossible for me to glean a stated commitment to upgrade the worker from the email of 22 May 2017.

I can also accept that the Employer had an understanding that what it was providing to the Worker in April 2017 was an opportunity to diversify and build her skills in promoting the online and blended learning.

The Employer understood that the Worker volunteered for the role, and this did not bind the University to her permanent appointment in the role. The Employer viewed this time as a scoping out exercise with an opportunity to potentially formalise a full-time position in Instructional Design.

I accept that the University fully intended on employing such a role, but the approval process and associated business case had not been commenced. For example, there was no specific contract or job description agreed for the role. Circumstances followed where the position was not required at the Dept as they began to rely on external support of other Depts.

My attention is next drawn to what the parties did when the role as the worker knew it ceased around late 2019.?

I can appreciate that the Employer sought to accommodate the Worker in alternative positions open for lateral transfer. The Worker sought to use this as an opportunity to tie in the grade 5 in the move.

In my working with the Parties, I was struck by the Workers reluctance to acknowledge the efforts made by her employer to resolve the impasse. She carried a very linear view of resolution as opposed to the employers more circuitous exploration of options.

At one point, I spoke to the parties to reflect on the interdependence of each others roles through leadership and co operation.

In my being so direct, I was mindful of a recent opinion of the Labour Court in Sky Handling Partner and A Worker, LCR 22959

This was a case where the worker was dissatisfied with training which ultimately led to her resignation and she made a direct referral to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969, where she would have agreed to be bound by the outcome.

The Employer rejected all the complaints, and it was not disputed that the trainer had in fact complained the worker.

The Labour Court recorded an insightful line, when they wrote:

“It is clear that there is no shared understanding of the factual matrix underpinning the parties trade dispute “

The Court refrained from linking an award of compensation to a Recommendation in   this case.

Instead, the Chair wrote the following:

“ In all of these circumstances , the Court recommends that the parties , in exercise by them both of realism , pragmatism and common sense , should (a) accept that their trade dispute is not capable of resolution by way of agreement between them and ( b) regard their trade dispute as resolved by common acceptance of the situation .

I have reflected on that analysis and at present, wish separate its spirit from the dispute at the centre of this case. However , I found the Courts pragmatism have a  potential for learning.

Both Parties have presented their best recollection of their reality of their particular case at hearing.

I spent some time with the Parties exploring a potential resolution in the case.

I am grateful to the Parties for the time given to this.

Unfortunately, it did not result in a mutually acceptable resolution.

I accept that it is not within the range of feasible opportunities open to the Employer at this time to upgrade the Worker.

In addition, this may place the claim into a “body of workers “claim, which may in turn limit my capacity to make a meaningful Recommendation. Section 13(2) of the Act.

I have viewed this case through the exceptional circumstance’s prism due to its long-standing status and pronounced impasse. The Parties are stuck, the employment relationship is strained and both parties need a Recommendation at this time to cement a respectful move forward within a live employment relationship.

I have found some merit in this Dispute.

Claim for upgrading to Grade 5 on legitimate expectation