Worker

Employer

Anonymised Parties

Social Welfare Officer

Care Centre

Representatives

Joseph Ateb,

SIPTU

Gerry Mitchell,

IR Advisor

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 - 00002158

25/01/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of April 2023.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.

The Complainant was not represented and made his own case/ The Complainant was fully represented. The Complainant was represented by a member of the professional Association established to meet the needs of its members and consequently having a specialised interest and knowledge. At the outset/when it came time to hear the Complainant’s evidence, the Complainant agreed to swear an Oath/ make an Affirmation to tell the truth. The Complainant brought a number of witnesses to provide evidence in support of his/her case. I was provided with a comprehensive submission dated the    day of . The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant and his/her witnesses was challenged as appropriate by the Respondent/by the Respondent’s Representative.

The Complainant alleges that he/she was Unfairly dismissed.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant.

The Respondent had representation at this hearing/ The Respondent entity was represented by the HR Manager/General Manager/D3e33irector.  The Respondent was represented by the business representative group known as IBEC. The Respondent provided me with two written submissions dated March 2020 and April 2021. I have additionally heard from a number of witnesses for the Respondent including the Respondent himself. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation/Oath. The Respondent was cross examined/ questioned by the Complainant.

The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to both sides in this dispute.

The Complainant worker herein has worked in Child Care for more than twenty years. He commenced his employment in location A in 2002. In 2004, the Complainant was appointed to an Acting-Up role of Team Leader. This role attracted an Allowance over and above the Complainant’s core salary. This acknowledges the extra duties taken on by the Complainant. I understand that these duties involved overseeing and managing up to fifteen of the Complainant’s colleagues. The Allowance is identified by the parties as a Team Leader Allowance Payment. It appears that the acting up role was only intended to last a short period of time. The Complainant was never placed on the Team Leader Pay Scale. For reasons not identified, the Team Leader Role was never advertised nor filled leaving the Complainant in the acting-up role for many years longer than was originally expected.

In 2010, Location A closed, and the Complainant transferred to Location B – the Respondent facility herein. It is agreed that the Complainant moved over on the same terms and conditions that had existed in Location A. Both parties accept that the Complainant moved from A to B on the same terms and conditions. To my mind this must mean that both parties accept that the Complainant moved as an Acting Team Leader attracting a Team Leader Allowance Payment and I note from correspondence and indeed the Respondent’s own submission that this status was categorically red circled to the Complainant.

I understand that the role of Team Lead did not exist in Location B so that the Complainant could never have competed for the role had it become available and as a matter (seemingly) of expedience the Complainant was simply red circled.

The Complainant’s core salary when he moved over to Location B was in and around €41,000.00 to €42,000.00 with his acting up allowance coming in at about €14,000.00.

Every year the Complainant’s core salary went up incrementally so that by 2023 the Complainant’s core salary was in the amount of €62,265.00. This represents an average annual incremental lift of about €1,600.00 per annum though some years have a sharper increase than others.

As I understand it, the Complainant says that in 2010 the Acting-up allowance he received over and above the core salary was in and around €14,000.00 (€569.17 x 26 weeks). However, this figure has reduced year on year so that by 2023 the value of the allowance had been halved to €7,142.00. Therefore the facts demonstrate that as his core salary went up incrementally over the thirteen years the Complainant’s acting up allowance did not increase incrementally. Nor did it stay static. The Allowance in fact reduced year on year.

The Complainant was given specific written assurances as part of the red circling process that as he

“came to the campus as an Acting Team Leader this is red circled to you as an employee and will remain while on the RSCW scale”

The Complainant has asked that I interpret this assurance given to him as recently as the 22nd of November 2022 to mean that the Complainant whilst he continues to move along his relevant core pay scale is also recognised as having the benefit of being red circled as an acting team leader. The benefit in this instance being the allowance payable. I have no difficulty in recognising this intention nor do I think does the Respondent reject this intention, as far as it goes.

However, the Complainant asserts that the process of being red circled is in fact a means by which an Employer identifies that a particular arrangement must, as a matter of fairness, be allowed to continue moving forward. This can happen even where the arrangement might be at variance with the balance of the workplace. It can happen even where - as in this situation, only one Employee benefits. An Employer must enter any such arrangement with care but once entered into it is not fair or appropriate to dismantle it. 

The Complainant makes the case that the Employer has acted so as to incrementally dismantle his acting up allowance. Every time the Complainant’s core salary went up the Complainant’s (red-circled) allowance was reduced pro rata. The Complainant asserts that even if the allowance did not increase year on year at the very least is should have remained static. The Complainant makes the case that the impact of his incremental year on year shift upwards to his core salary was diminished by the year on year drop to his allowance.

I find I agree with this reductive reasoning.

The Employer herein has referred me to  the 2007 Appendix to Agreeed Report No. 1488 and Circular 38/2007.  It is clear therefrom that the Officer (the Complainant herein) for the duration of the assignment to higher duties should continue to be treated for pay and incremental progression purposes as if he had been promoted to the higher grade. The combined salary and allowance should be equivalent to the pay he would be in receipt of had there been a promotion to the higher grade. (para 3)

At para 4 the Respondent has asserted that the Respondent is entitled to reduce the Allowance in the way that it has as there is an obligation to ensure that the remuneration received by the Complainant (by way of core salary and allowance) is not greater than the remuneration being received by the Employee at the Higher level – i.e. by the notional Team Leader with the same number of years of service as the Complainant.

The Respondent has not really fully explained how the Complainant fits into this Circular. The Respondent has asserted through it’s submission that the there is no Team Leader role. The Respondent insists that the Complainant has been treated more favourably than the accepted and conventional view of red circling and lastly the Respondent has asserted that the Complainant continues to be treated favourably by the Respondent and no basis exists for his claim that there has been a reduction in his acting up allowance or that there are any shortfall owed.

I find I cannot agree with this analysis. It is an unfortunate fact from the Employer’s point of view that this Employee came to them with a significant Contractual benefit which they have to continue to honour in some shape or form. The Complainant has been (after two days before the WRC) somewhat more reasonable in his expectations and accepts that there has been a significant delay in bringing this matter forward.

In considering this matter I did refer to a Labour Court recommendation of Wicklow County Council v SIPTU (CD/18/81)  opened to me recently  wherein it states:-

 “Having considered the submissions made by both sides, the Court is of the view that those employees employed in Bray Town Council prior to its amalgamation in 2013 who were in receipt of double time payments for public holiday overtime hours worked should have this method of payment “red circled” i.e. they should on a personal basis retain the right to be paid double time for the hours worked if they so wish where they are required by Management to work on a public holiday. Other employees should continue to receive paid time off in lieu in addition to basic pay for hours worked and the paid day in respect of the statutory entitlement.

This recommendation seems to align with the view that sometimes the red circling option can and will throw up subsequent anomalies. This is a situation which the Employer herein freely entered into.