Worker

Employer

Anonymised Parties

A Clerical Officer

A Public Body

Representatives

SIPTU

 IBEC

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 - 00002817

04/07/2024

The complainant seeks to have incremental credit backdated to place her on her correct, higher point of the pay scale. The employer has acknowledged that she was mistakenly placed on a lower point of the scale due to an error in confirming her incremental credit. However, they have only backdated her pay by six months. 

Incremental credit should be backdated to the date she commenced employment, as that was when the employer initially placed her on the incorrect point of the pay scale.

The complainant beganheremploymentwiththe respondent onJanuary10th,2022.HerContractofEmploymentstatesthatincrementalcreditisrecognisedandoperates inaccordancewiththepayincrementspolicy.

Upon commencing employment in January 2022, the complainant completed induction forms, and service verification with HR to ensure her prior service was reckonable.

A few months later, in September 2022, she noticed that she was placed on the wrong point of the pay scale. On September 9th, 2022, she queried this and starting point and she was told to contact her direct line manager, which she declined to do because she believed this issue should be addressed by payroll.

Before she could do so a family medical issue intervened and she did not raise the issue again until February 16th, 2023, when she contacted the HR manager, requesting a review.

She got a reply on May 19th, 2023, confirming that she had successfully completed her starting point pay review and moved her to point 6 on the incremental scale, accounting for her reckonable service, but only backdating her reckonable service to February 2023, rather than January 2022, when she began her employment.

On June 1st, 2023, the complainant raised the decision not to backdate the reckonable service to the start date of her contract of employment and sent further queries on the issue on June 6, 2023, but indicating her reluctance to take a formal grievance as she felt that the matter could still be resolved informally.

On June 23rd, 2023, HR advised the complainant to use the internal grievance procedure to address her concerns even though the facts had been accepted and applied by the company in relation to her reckonable service.

The grievance procedure was initiated on July 4th, 2023, initially informally but then formally and a Stage 1 grievance was initiated on July 7th, However, the grievance meeting did not take place until August 15th, 2023, outside the seven working-day timeframe outlined in the  grievance procedure.

According to the procedure, a decision was due by August 24th, 2023, but it was not received until September 13th, 2023. The decision did not resolve the grievance. (Relevant documents related to Stage 1 of the grievance process were submitted).

Stage 2 of the formal grievance was initiated on September 25th, 2023. The grievance meeting took place via phone on November 22nd, 2023, outside the required seven working-day timeframe. A decision was received on December 13th, 2023, which did not uphold the grievance, again, outside the required seven working days.

Stage 3 of the grievance procedure was initiated on December 19th, 2023. A meeting was held in person on January 23rd, 2024, again outside the required seven working-day timeframe. An outcome was due within seven working days of the meeting, but the complainant  did not receive the decision until February 6, 2024, which stated that the grievance was not upheld.

The complainant  started working on January 10th, 2022, and was placed at Point 1, of the pay scale, earning €25,101. Following a successful pay review effective February 12, 2023, she moved to Point 6 of the scale, with a salary of €32,646. Currently, she is on Point 7, earning €33,901. The complainant  is now correctly placed on the pay scale, and this matter is not in dispute.

Our complaint concerns the fairness of the application of the pay policy, particularly regarding retrospection based on the facts provided by the complainant. Initially, she was placed on a different pay scale, which was revised for all clerical officer grades on March 1st, 2023, due to a general pay increase.

She should have started her employment on Point 5 of the 2022 pay scale and the error resulted in a loss of €2,128 in earnings from January 2022 to September 2022.

In total, her loss is €2,128 and this is the basis of our claim.

The dispute between the parties centres on whether the employer has a responsibility regarding the recruitment documentation.

At the start of her employment, the HR team provided all relevant documents, including a service recognition form. The employer does not dispute that the onboarding process occurred and that service recognition was part of it. They also acknowledge receiving the requisite service recognition forms from the complainant  at the beginning of her contract.

However, the employer argues that retrospection to the start of the contract is not warranted, based on her acceptance of her employment contract. They refer to the policy on pay increments, which states that if past service information is submitted more than six months after the commencement date, pay adjustments will take effect from the next payroll date after verification.

Since a pay review was not requested until February 2023, the employer claims retrospection should only apply from six months prior. This position is detailed in the grievance outcome letter. Additionally, the employer cites COVID-19 disruptions as a reason for not conducting the usual recruitment process, suggesting this offsets any responsibility for the delay in retrospection.

The outcome of this grievance process is unfair because it misplaces the burden of responsibility. The employer is responsible for completing the assimilation process, which includes verifying and processing any necessary documentation. The employer acknowledges receiving the complainant’s service forms at the time of her onboarding but fails to explain why these were not completed.

In its grievance response, the respondent cites the COVID-19 pandemic as a reason for shifting the responsibility to the complainant  to follow up, but also admits that its pay increments policy was not communicated to the complainant upon joining and was only shared retrospectively. It is therefore unreasonable to use this policy as the basis for denying backdated pay, as it creates an inflexible standard that disregards the broader context of the situation.

The responsibility to ensure a complete induction remained with the employer. The complainant ’s follow-up request for a pay review in September was dismissed as untimely, yet the employer’s own cited context—COVID-19 disruptions—is not accepted as a valid reason for delays on her end, nor does it consider the impact of The complainant ’s personal circumstances at the time.

The pay increments policy states that if past service information is provided within six months of the start date and is verified, payment should be backdated. The complainant  did provide the required information within this timeframe, but the employer failed to verify and approve it. No justification has been given for this omission, which is why we argue that backdated pay is warranted.

The second issue relates to the delay in processing the grievance.The respondent  failedtoadheretoitsown grievance procedures by allowing numerous delays and breaching policy guidelinesinthehandlingofthe complainant’scase.

While the grievance policy permits extensions to the timelines if there are "exceptional circumstances", at no stage was the complainant informed of any such circumstances. This demonstrates a lack of transparency and accountability on the part of the respondent , undermining the fairness and integrity of the procedure and violating the core principles of the policy.

The formal grievance stages, which should have been completed in a timely manner, were subject to repeated and unjustified delays as set out above.

The grievance procedure clearly states that timelines may only be extended if exceptional circumstances apply. However, throughout this process, The complainant  was never informed of exceptional circumstances at any stage.

The prolonged grievance process, extending over 33 months from the complainant ’s start date in January 2022 to the scheduled WRC hearing in October 2024, is both unreasonable and unjust. This timeline is excessive for an issue that could have been addressed internally when all relevant information was available from the beginning. The requirement for the complainant  to engage in an informal stage, despite the respondent’s pre-determined stance, not only prolonged the matter unnecessarily. We are for the reasons outlined seeking compensation for the delay and the impact on The complainant

References were made to In ADJ-00019441, A Nurse A Health Service Provider  and LCR21495 Labour Court, both under the Industrial Relations Act, and IR-SC-00001160 which have been reviewed.

Preliminary Matter: Collective Issue

The Complainant has raised a claim in relation to the terms and conditions of employment regarding pay, more specifically the application of the Respondents Pay Increments Policy, which as such is a collective issue. Any decision or recommendation from an Adjudication Officer based on this claim would affect a body of workers, not solely the Complainant, including all employees employed by the Respondent, along with setting a precedent amongst all HSE, Department of Health and wider public sector employers.

Section 13 (2) of the Industrial Relations Act 1969 sets out:

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

As the Complainants referral solely relates to rates of pay, the Respondent contends that the referral to the Workplace Relation Commission under Section 13 of the 1969 Act is not valid and hence these issues are not within the scope of this Adjudication hearing.

The Complainants grievances pertaining to the application of the Pay Increments Policy is not an isolated issue/grievance, but in fact is a collective matter, as this policy applies equally to all employees of the Respondent.

As such, in the event an Adjudication Officer was to make a recommendation in favour of the Complainant, which would result in the policy being changed, this would affect all employees employed by the Respondent, and set a precedent amongst all HSE, Department of Health and wider public sector employers, i.e. a body of workers.

In the matter of a Research Fellow v a University, ADJ-00027947, the Adjudication Officer, held:

“In considering this argument I accept that the complaint is from one individual worker however any recommendation in this complaint has the potential to be utilised across a range of workers or as the Act states: a body of workers.

It is therefore, with regret, that I have to accept that I do not have jurisdiction to make a recommendation regarding this complaint.”

While the Complainant has made this complaint on her own behalf, the Respondent would like to note, as stated by the Adjudication Officer in An Education Specialist v An Educational Body, IR-SC-00001081:

“Any versionofthe outcomesheseeksfrom thisprocesswould beseized upon,notonly by colleagues within the same, or similar organisations but in the wider public sector and beyond.”

The Adjudication Officer in thiscaseheld thatthecomplaintmaynot beconsidered under the Industrial Relations Act due to the collective nature of the complaint.

The complaint in this case is clearly submitted as a collective issue and is not within the scope of an adjudication hearing to allow a Complainant to take a claim which would affect a group of employees.

The Respondent submits the Labour Court decisions in LCR22496and LCR22370, are also applicable in this instance. Both claims related to the application of a Circular covering incremental credit, to which the Court deemed to be a collective matter and as such precluded from being heard under Section 13(2) of the Act. Thus, it is submitted that the Adjudication Officer does not have the requisite jurisdiction to hear this claim. And nor can he/she proceed to hear the substantive case until this matter is determined.

The Respondent submits that it has acted fair and reasonably in all circumstances, with the Complainants incremental credit applied correctly in line with policy and the established practice.

Prior to the commencement of employment, the Complainant signed her contract of employment on 24 December 2021 As per her contract of employment, 3.0

 Reward,theComplainantwasplacedatpoint1ofthescale,withincrementalcreditapplied inlinewithpolicy

Furthermore, at 12.4 Policy and Procedure, it is stated that along with the contract of employment, that the Respondent Policy and Procedure Manual forms part of her terms and conditions of employment. All policies and procedures are available to employees on the desktop of each computer.

The respondent submits that the complainant was offered, and subsequently accepted the annual salary as set out in her employment contract, which clearly sets out incremental credit is applied in line with policy. While it is unfortunate that she did not provide the information in line with policy upon commencement of employment, once she provided the relevant service verification information, it was applied in line with the established policy and unfortunately could not be backdated to her commencement date.

The Pay Increments Policy is well established on this matter within the Respondent organisation, with this information also stated within the Recruitment and Selection Policy. As per the policy, ‘istheresponsibilityofallnewemployeestoensureaVerificationof ServiceFormiscompletedinorderfortheirincrementdetailstobecarriedfromprevious service.’

Further to this, the Policy states ‘In line with the HSE guidelines, incremental credit will be appliedforserviceandexperiencerelevanttothepublicservicerole.’ The relevant HSE guideline is Department of Health Circular 2/2011 which states ‘Incremental credit is normally granted on appointment, in respect of previous experience…’

Circular 16/2005, with [c] Application of this Circular stating ‘(i) in general applicationforincrementalcreditwillbeconsideredonlyatthepointofentryto theCivilService.Theonuswillbeonthecandidatetoclaim.Newrecruitswillbe informed of this arrangement in the letter of offer.’

Further to this, there is no national rule or provision that deals with the scenario of a retrospective application of incremental credit.This has not been contemplated due to the fact the circular addresses that it is at the point of entry.

It is for each individual employer to apply the process of the circular equally to all employees, which the Respondent has done in this instance. In particular, the Respondent is aware the provision of the six-month timeline is above the norm within the sector.

The policy clearly outlines, the 6-month timeline, which as per her contract of employment this policy forming part of the Complainants contract of employment.

The Labour Court case of Dublin Institute Of Technologyv A Worker, LCR20272, dealt with the issue of the application of a recruitment policy, specifically in relation to incremental credit. A change in policy resulted in a difference to how incremental credit was applied, with all new employees placed on the first point of the relevant salary scale – regardless of experience (with limited exceptions). The Court took the view ‘that the Policy change was a collective issue that fell to be addressed by the trade unions and management in its own right. A claim by an individual who was affected by the policy change is not an appropriate vehicle through which to process such a collective issue…….

So long as the new policy was applied in a consistent manner by the Institute to all new appointees, the Court can find no basis upon which it can recommend concession of the Union’s claim.…. Accordingly the Court does not recommend concession of the Union’s claim.”

The respondent’s Pay Increments Policy is well established, and applied equally and consistently to all employees. In any case, the Complainant was treated outside of policy, as gesture of goodwill, resulting in her incremental credit being applied from the date she raised the concern with HR, as opposed to the date the verification form was received.

During the grievance process, the complainant was treated fairly, in line with the principles of natural justice throughout the grievance process. Specifically, she was afforded the right to representation, provided with several fair and impartial hearings, at which she was given every opportunity to put forward her case, and all the evidence in its entirety was considered.

Further, all representations were considered before any decision was made and she was afforded the right to appeal, in line with the stages outlined in the Respondents grievance procedure and each stage was heard by a senior manager not previously involved in the earlier stages.

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

I identify three issues in this case.

The first is whether the complainant has been placed on the correct incremental point and with the correct effective date having regard to the applicable policy.  There are two further related issues.

The first of those related issues; a relatively substantive issue, and it is a critical point for reasons set out in the respondent’s submissions and the well-established practise of the WRC, is whether the respondent has acted properly in interpreting the relevant regulations.

Its submission is that a recommendation on the principle involved would have wider application to a body of workers and therefore fall outside the jurisdiction of the Industrial Relations Act.

The respondent has submitted that

‘in the event an Adjudication Officer was to make a recommendation in favour of the Complainant, which would result in the policy being changed, this would affect all employees employed by the Respondent, and set a precedent amongst all HSE, Department of Health and wider public sector employers, i.e. a body of workers.

This therefore is an issue related to jurisdiction; can a recommendation issue which can vary the correct application of the policy such that it would impact more widely on other workers. I answer this question below.

A second issue is raised by the complainant is, even if the respondent acted in compliance with the relevant policy, what, if any degree of responsibility attaches to it for the delay; initially in not advising the complainant of the terms of the scheme and what she needed to do to comply,  a failure which the complainant says has caused her losses of just over €2100.

The third is whether the respondent failed to comply with its own timeframes in relation to the processing of the grievance, which has been detailed at length above in the complainant’s submission. (It might also be noted in passing that the complainant also contributed to delay in processing the matter in the early stages, although it has been submitted above there were mitigating factors in this regard.)

On the first of these issues I find that the respondent acted in accordance with its own policy and applied the retrospectivity correctly. I accept the respondent’s submission that I have no jurisdiction to make a recommendation on any aspect of the matter which might require a change in that policy.

However, I do propose to look at the manner in which this has been handled by the respondent having regard to the general equitable jurisdiction that arises under this legislation.

As has been seen above two issues arise in this specific context that have nothing to do with the application of the policy.

The first concerns the responsibility of a new employer to fully advise a recruit to the organisation of what requirements are necessary in order to ensure that they are, for example, properly placed on the incremental scale.

There do seem to have been some problems as a result of the Covid pandemic restrictions, but these are insufficient to displace the obligation that falls on an employer to ensure that a person is assimilated correctly and that it has secured all the information that is required to do so.

The respondent stated at the hearing that the onus falls on a new recruit to supply the relevant information. That is obviously true insofar as it concerns material that cannot be known to the new employer, such as the person’s previous employment history.

But the onus to ensure that a person is correctly inducted and assimilated falls squarely on the new employer, likewise the obligation to make it unequivocally clear what precise information is required to do so.

The oral submissions at the hearing highlighted a degree of ambiguity about the information required to be submitted by the complainant as between their most recent employment and previous employments.

In any case, as the complainant submitted there was a further degree of ambiguity around this as exemplified by a letter from the respondent on September 21st, 2023, in which it was acknowledged tellingly that information she was sent on that date ‘may have been the first you have heard about the matter’.

The second concerns the delays in processing the complainant’s grievance on that specific issue of the effective date once it was accepted that her point on the scale had to be adjusted.

While timeframes in grievance processes in general may be regarded as somewhat indicative and some departure from strict observance of them will rarely be procedurally fatal, in this case the respondent’s own criterion for any such departure is that of ‘exceptional’ circumstances.

Some of the delay was significant. At Stage One there was over a month between the submission of the grievance and a hearing and a further month until a decision.

At Stage Two it was something similar; there was over a month between the submission of the grievance and a hearing and a further three weeks until a decision.

At Stage Three, (while some allowance must be made for a Christmas/New Year break) it was again a month between complaint and hearing and a more excusable two weeks to a decision.

The complainant has leaned heavily on these delays in her submission and the respondent provided no explanation for them or whether there had been ‘exceptional’ circumstances to explain them. Notably, in describing the general fairness of the process the fact of the delay was ignored by the respondent.

A process that should have taken an accumulated six weeks took the best part of six months and, in my view, this is excessive especially by reference to the rather simple net issue that was involved.

No deep investigation was required, or any wrestling with complex issues, and the complainant is entitled to a remedy on that account as the delay looks more like cavalier indifference to her right to expeditious, or in any event efficient processing of her grievance.

Accordingly, in summary, and for the avoidance of any doubt I find that the complainant was correctly assimilated and from the correct effective date in compliance with the applicable policy.

However, I conclude that she is entitled to a remedy for the failure of the respondent to ensure that it acquired all the necessary information to arrange her correct assimilation on to the incremental scale at the point of recruitment, or within a reasonable period thereafter.

I also find that the pattern of delay in the processing of her grievance was unjustified by reference to the respondent’s own policy and the nature of the issue involved. She is entitled to a remedy for this also.

Taking both these points into account, accordingly, I recommend she be paid €1,750 compensation for breaches of her rights.

Grievance procedure