ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00013160
A Health Service Provider
Martina Weir SIPTU-Workers Rights Centre
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 25/07/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant commenced employment with the respondent in 2004 as Chef Grade 2 .She began covering the post of Chef Grade 1 in November 2013 when the post became vacant .In November 2014 , the claimant was formally appointed by way of temporary assignment to the position of Chef Grade 1.Arising from this arrangement the claimant was issued with a series of contracts of employment ranging from 3-6 months ; on occasions the contracts were issued retrospectively with the claimant reverting back to the Chef Grade 2 scale until the new contract was issued whereupon the claimant would be paid the difference retrospectively. It was submitted that by November 2018 , the claimant would be in the Grade 1 post for 5 years. To compound matters the claimant found herself covering another higher grade post of Senior Chef since February 2015.No additional remuneration was paid as she understood , a worker cannot be in receipt of 2 X acting allowances. The claimant receives the rate for the job of Chef 1 and consequently it was submitted that the Senior Chef rate should apply. It was highlighted that the claimant also covers for the most senior post of Catering Manager when the postholder is on leave. The claimant lodged her grievance with the Nursing Manager in Nov. 2017 complaining that there were now 3 permanent vacancies while she had full responsibility for the catering service and the 40 catering staff. It was submitted that all efforts to regularise the claimant’s position had failed .It was advanced that the claimant was a dedicated and diligent worker and should be recognised as a Senior Chef given her experience in the position as and from the 29th.Sept. 2017 .It was further requested that the claimant be paid any outstanding acting payment for the period she was acting at a higher level from the 29th.Sept.2017.
Summary of Respondent’s Case:
The respondent confirmed that the claimant ‘s substantive post is that of a Chef 2 and it was acknowledged that she had provided cover for the Chef 1 position since Nov. 2013 and as Senior Chef from March 2015.It was submitted that the claimant was paid in accordance with Circular 008/2016 arising from LCR 21104 and that she had progressed to the top of the Chef 1 scale.It was acknowledged that the claimant was not being paid the appropriate rate for the job as Senior Chef but it was submitted that there was no defined pathway that allowed for that.It was acknowledged that the claimant wasa valuable and valued employee and there are no issues of concern regarding her performance or capacity in the Senior Chef role.It was submitted that the only scope for regularisation was through the 2013 process which dealt only with posts that “ must have been acted in on a continuous basis for at least 2 years as at the 31st.Dec.2012” and that currently the only mechanism was through the Job Evaluation Scheme which was restricted to Clerical/Admin.grades.It was submitted that the respondent had explored the regularisation under Fixed Term Legislation but this did not apply to the claimant.It was submitted that the respondent could not digress from the meritocratic process and that the post had to be available to the widest possible pool of candidates.It was suggested that the most logical option was to advertise the post while acknowledging that this offers no guarantees and some degree of risk for the claimant.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I have reviewed the evidence presented at the hearing and noted the respective position of the parties. I note the previous regularisation process of 2013 applied to staff with in excess of 2 years acting / working in a higher grade. I further note that the claimant does not have locus standi to pursue a complaint under the fixed term worker legislation. I consider the circumstances prevailing in this dispute to be unique give the fact that 75% of the management grades in catering at this location were unfilled in a permanent capacity for an extended period and no plausible explanation was advanced for to justify this arrangement. By all accounts and despite this the claimant was willing and flexible and this has been acknowledged by the respondent. In the circumstances and given the unique features applying to this dispute, I recommend in full and final settlement of this complaint that the claimant be regularised as a Senior Chef with effect from the 1st.November 2017 and that in assimilating the claimant onto the Senior Chef scale that she is credited for having acted in the post since the 1st.March 2015.
This recommendation is based on the unique circumstances of this dispute and should not be invoked or relied upon at any other forum.
Dated: 22nd October 2018
Workplace Relations Commission Adjudication Officer: Emer O Shea