ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00020369
Health Service Provider
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: 27/05/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with 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 as a Ward Attendant in 2007 and was appointed permanently into that grade in 2011.In accordance with the provisions of an LRC Agreement concerning the designation of 5% of Clerical Officer vacancies to be filled by non officers , the claimant sought promotion to a vacant Clerical Officer position in 2012 and was released to take up duty in this vacant C.O. post on the 20th.Feb. 2012.The claimant submitted that it was her understanding that she would automatically attract the CO terms and conditions of employment but this did not happen and she continued to on the rate of pay and hours of Ward Attendant.The claimant asserted that despite numerous requests she was never furnished with a contract or job specification for the position.The claimant submitted that the respondent’s application for regularisation of the claimant in 2014 was a paper exercise and ultimately her application failed.The claimant sought recognition of her grading by way of letter in April 2015 and the claimant set out a chronological account of the ensuing correspondence between the parties on the status of of the post as Clerical Officer.The respondent replied in May 2015 to the effect that she could not be appointed as a Clerical Officer as there were no Clerical Officer vacancies at the time.The claimant referred the matter to the WRC and a settlement emerged providing for the claimant’s appointment – she submitted however that the respondent resiled from the agreement by appointing her to the incorrect incremental point and by appointing her to a Grade IV position with Clerical Officer terms and conditions.The claimant asserted that the respondent had no regard to her ill health at the time and submitted that the respondent “ knew I was off on sick leave but they still chose to inflict further distress”.The claimant refused to sign the contract offered and sought to return to her position as Domestic Ward Attendant – this was not permitted by the respondent on the grounds that the claimant had been working as a Clerical Officer for 4 years , her de facto contract was that of Grade 111 Clerical Officer.The claimant submitted that she was shown no empathy by the respondent and contended that the respondent took advantage of her vulnerability while on sick leave.She submitted that she unwillingly signed the contract under protest and unwillingly.The claimant asserted that her colleagues in the same post in the other 2 areas were employed as Grade IV Assistant Staff Officers and that this was the national standard for positions of PA to Area Director of Nursing.
The claimant invoked the provisions of a number of circulars which she maintained would have ensured an acting or temporary arrangement which would have entitled her to a Grade IV position after 4 consecutive contracts.
The claimant contended that as long as the respondent failed to acknowledge the claimant’s true grading , she was prevented from applying for promotion both internally and externally.She submitted that she had been working as a Grade IV for the past 6 years but in the absence of a contract to reflect that she was not eligible to apply for promotion.The claimant was seeking an acknowledgment of her “ appointment to a Grade IV position by means of issuing to me a new contract of employment effective from 1st.October 2013”.
Summary of Respondent’s Case:
The respondent set out a chronology of the claimant’s employment history – it was submitted that the claimant was appointed as a permanent Clerical Officer from the 1st.Nov. 2013 .In response to the claimant’s contention that she should be appointed as a Grade IV , it was submitted that all permanent appointments must be in accordance with the CPSA Code of Practise which requires an open, transparent and meritocratic process from the widest possible pool of candidates.It was submitted that the only exception to these provisions were regularisation – the claimant did not meet the defined regularisation criteria .The Job Evaluation Scheme had been suspended under the 2009 moratorium on recruitment but was reactivated in 2016.Where an upgrade is recommended by the evaluators and the post has been occupied by an individual for 4 years or more at the time of the evaluation , the filling of the post is by way of designation.It was submitted that the claimant had been advised to apply for evaluation but to date has been unwilling to do so.IT was submitted that there was simply no other mechanism open to the employer to bring about upgrading to the post.The respondent acknowledged that the claimant’s claim was reasonable and that the claimant undertakes her role in a diligent and conscientious manner.
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 positions of the parties.Following the hearing , the HSE have clarified by way of email that the previous postholder of the claimant’s position as PA to the Director of Nursing in Mental Health was a Grade 111 Clerical Officer and that the equivalent posts in the other 2 areas in the claimant’s Region CHO 1 are graded at Grade IV.I acknowledge the legitimacy of the claimant’s grievance regarding the initial prolonged failure to appoint her as Clerical Officer – this is acknowledged in correspondence from the claimant’s line manager as an oversight ; it is regrettable that the settlement terms reached at a previous WRC hearing in 2016 were not implemented and this has no doubt fuelled the grievances presented by the claimant.I recommend that the respondent comply with the provisions of that settlement by the payment of any arrears arising from the agreed assimilation to the 10th.Point of the CO scale from the 7th.Jan. 2016 to the date of this recommendation.
I acknowledge the claimant’s contention that in reality she has worked at Grade IV level since 2013.However , I cannot ignore the respondent’s assertion that the level of this PA post varies from region to region and that there is not a national standard for these PA posts.I must also take account of the conflation of the 2 grievances i.e. the classification as Clerical Officer and the actual grading of the post.I note that the documentation submitted by the claimant clarifies that she first formally raised the issue of the grading of the post in a letter to her line manager dated the 8th.April 2015.Having considered all of the submissions , I find that the respondent’s requirement that the claimant pursue her regrading through the job evaluation scheme in circumstances where the grading of the post is established at Grade IV in the other 2 mental health areas of her region and in circumstances where there has been an inordinate delay in sorting out the classification of the post as a Clerical Admin grade , to be unfair on the claimant. Accordingly , I am recommending in full and final settlement of this dispute that the claimant be designated as a Grade IV Officer in accordance with standard arrangements for starting pay on promotion , with effect from the 8th.April 2015.
Dated: 6th August 2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea