Complainant

Respondent

Anonymised Parties

Healthcare Worker

Healthcare Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017203-001

01/02/2018

The dispute is in relation to proposed changes to the terms and conditions of the complainant arising from a review of all aspects of the operations of the respondent and the identification of purported anomalies in the salary structure of a number of staff members.

The complainant has been placed under unwarranted pressure to agree to alter her contract of employment by management by way of the threat of the respondent pursuing her for significant sums of money that she allegedly owes them.

In the meantime, the complainant has endeavoured to carry out her role professionally and diligently and has continued to honour her contract of employment.

The complainant’s ongoing exclusion from incremental progression is unfair and unwarranted.

The complainant was erroneously placed on the wrong rate of pay and has been paid in excess of the rate attributable to her role.

To continue to pay the complainant in excess of the correct rate of pay would be an improper use of public funds.

About 20 staff were identified as being in a similar situation and the respondent has, with the assistance of the WRC, negotiated settlements with most of these staff.

The respondent has put forward a similar proposal in respect of the complainant which they believe to be fair and reasonable.

In 2014 the respondent organisation found itself in serious financial difficulty due to various factors including cost overruns. An analysis of activities found that a number of staff salaries were out of line with health service approved rates. Funding would only be provided to the respondent at the approved rate. The complainant was one of about 20 persons who were paid in excess of those rates and the respondent commenced an exercise to address these issues.   Historically it would appear that in 2007 the complainant was appointed to the position of Occupational Therapy Assistant but that her contract specified that she remain on the Social Care Worker scale.   It seems however that there was a delay in identifying the complainant as being affected and that the negotiations, which were conducted with the assistance of the WRC, did not include the respondent. An agreement was reached with the staff concerned and the respondent wishes to extend that agreement to the complainant. The complainant rejects this approach on the basis that she had no input into those negotiations and therefore cannot be bound by the outcome.   The respondent has implemented a reduction in pay with effect from 1 April 2018.

The respondent in correspondence with the complainant referred to overpayments amounting to a sum in excess of €31,000.00 and initially there was mention of recovering this money from the complainant. It is clear, however, that the complainant had entered into a contract with the respondent in 2007 and was being paid according to that contract. There was nothing underhand on the part of the complainant in that regard. The difficulty that faces the respondent is that they will only receive funding for the role for which the complainant is qualified, i.e. Occupational Therapy Assistant. I accept that an organisation such as the respondent can pay their staff what they wish but that any excess has to be found from the organisation’s own resources.   It is obvious therefore that the reality of the respondent’s financial situation also has to be taken into account.   I note that in January 2017 the complainant’s union wrote to the respondent with a proposal in relation to the affected members to engage with the respondent in order to bring pay and terms / conditions into line with health service approved rates provided that the respondent withdraws claims in respect of alleged overpayments.

As a result of this negotiation process a proposal emerged from the WRC in regard to 5 members of staff which was accepted by both parties. I fully accept that the complainant has a point when she states that she was not included in those negotiations. Her further point that if she had been included then the outcome might have been different is speculation on her part. The complainant also argued that the reason she was put on the Social Care Worker scale was because she was performing a range of duties beyond that of Occupational Therapy Assistant. The respondent has put forward a proposal based on that agreement. Under that proposal the complainant would be placed on the top point of the Occupational Therapy Assistant pay scale and receive 1.5 times the annual loss of the overpayment as compensation for loss of earnings. There would be no requirement to repay any monies in respect of what is termed as overpayment. The respondent for their part stressed the requirement to continue to provide essential services when financial constraints are in place and the inequity in maintaining the complainant’s salary when pay reductions have been applied to work colleagues in similar circumstances.

I fully accept that the complainant was paid according to her contract and that therefore the initial approach on the part of the respondent to refer to overpayments and the requirement for staff to repay large sums of money was unfortunate and ill-judged. I accept, however, that there was a financial issue to be dealt with and that this was eventually addressed by the parties through a negotiating process.   Again, it is unfortunate that the complainant’s position had not been identified at the time of the commencement of that process. The agreement that emerged from the process did away with the issue of repayments and dealt with compensating staff for reductions in pay. I can see no objective reason why this formula should not apply to the complainant. I therefore recommend that the complainant accepts the proposal put forward by the respondent in this regard, i.e. that she be placed on the top point of the Occupational Therapy Assistant scale and receive 1.5 times the annual loss as compensation.

I note that the complainant’s argument in relation to performing duties beyond those that apply to an Occupational Therapy Assistant. I recommend that both parties agree to undertake a job evaluation exercise to determine if there is another grade that would be more appropriate to the duties performed by the complainant.