ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018166
A HR Officer
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: 22/02/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Summary of Complainant’s Case:
The complainant had worked since 2007 for an organisation which was subsequently incorporated into her current employment, the respondent in 2009.
She was told at interview in 2007 that she could expect to progress to a higher grade in the promotional structure within two years.
Her previous grading structure differed from that of the respondent; specifically in that associated grades had been higher than those of the respondent.
On transferring, the complainant and her colleagues retained their grade; including both pay and title on a personal basis. In the complainant’s case that was HR/IR Officer.
Since 2014, and by agreement she has been using a job title associated with the structure in her previous employment, but which is a higher level than her substantive grade; HR Executive, although there was no adjustment in pay which remained that of the lower grade.
There is another, higher grade, that of Senior Executive which was also part of the previous organisation structure and the complainant says she was told in 2007 that she could expect to be at that level within two years. In any event the level at which she is currently operating is equivalent to this grade and she seeks to be appointed to the salary scale appropriate to it.
The complainant emphasises that the activities of her previous employer continued to be discharged following its incorporation and that its grading structure continued to be used as a benchmark for other grading claims.
Also, as her transfer took place under the TUPE Regulations, the protection of her terms and conditions of employment should extend to what she described as the ‘career progressional framework’.
The complainant says that she has been acting at a higher level than that comprehended by her current pay grade and she gave examples in her submission. She says that her level of responsibility has been recognised by her line manager.
However, a difficulty has arisen in relation to the appropriate promotional ladder which should apply to the complainant.
She submits that it should be the ladder appropriate to her previous organisation; i.e. that she should move through its grading structure as if she were still there.
There are significant financial advantages for her were this to happen and she seeks a recommendation that it should.
Summary of Respondent’s Case:
The respondent notes that the complainant was placed on her current grade on the basis of a ‘red circling’ agreement in 2009.
That grade and scale does not form part of the respondent’s pay structure.
In fact, the complainant is at a point on her salary which equates to 75% of the next higher grade (HR Executive) which in turn is half way between two of the respondent’s grades.
When it was agreed in 2014 that she could change her job title this was on the basis that it did ‘not give rise to consideration of any changes in grade or terms and conditions of employment, including salary’.
When she applied to have her position regularised in 2014 she did not meet the criteria governing the respondent’s re-grading options.
There were further discussions and a grievance process which was initiated in May 2018. This recommended a re-grading for the complainant on one of the existing grades operated by the respondent.
This was rejected by the complainant.
However, the issue, and the formal grievance raised by the complainant have been fully processed by the respondent and resulted in an appropriate re-grading of the complainant. He complaint that she was incorrectly graded has been upheld but this can only be resolved within its existing grading structure.
The grade to which she seeks to be appointed no longer exists within the respondent’s grading structure.
Indeed, the rejection of the offer of re-grading has created a further problem in that the post earmarked for the complainant is no longer available.
Findings and Conclusions:
There were extensive submissions made on both sides containing a great deal of detail about the background to the difficulty being experienced by the complainant.
The role of an Adjudicator in such cases as this is necessarily somewhat constrained.
The technical evaluation required to adjudicate specifically on what represents the correct grading for a complainant is not possible within the structure of a brief hearing; it requires technical tools and skills for which the adjudication process is not best suited, and indeed which have already been deployed by the respondent which is in the best position to do so.
However, it is possible to look at some general principles.
The first and most important is that the respondent accepts that the complainant is not at the correct level of grading and this makes the task easier by defining a starting point, if not a conclusion.
The respondent proposed that she be appointed to a higher grade, but she rejected that grade as being too low on two separate occasions. (At the maximum point of the proposed scale there is a gap of just over €8,000 between the grade suggested for the complainant and what she is seeking. Her current maximum is just over €14,000 below the proposed grade.)
The respondent also says that there are technical impediments in the way of appointing her to that grade now.
This leads to the question as to whether she has a valid, or at least equitable claim to be re-graded on the basis of the grades that applied in her previous organisation.
She asserted that a TUPE transfer entitles her to have her terms and conditions protected.
To succeed with this argument, she must establish that those terms and conditions of employment which transferred extend also to the promotional ladder and to her expectations of promotion.
There is some support for this idea, for example it has been noted that while the Irish TUPE Regulations refer to ‘rights and obligations arising from a contract of employment the Directive refers to the broader concept of rights and obligations arising not just from a contract of employment but also ‘from an employment relationship’.’
‘Employment Law’ Eds. Murphy Regan, 2nd Edition p 932.
However, this complaint is not being decided under the TUPE Regulations. The complainant transferred in 2009. She says she raised salary matters first in 2014, although she says this was for a different purpose and it did not succeed on technical grounds.
The process lading to the current claim was initiated in late 2017 and formally in February 2018, quite a few years after the transfer.
The respondent says the grading of transferring employees such as the complainant was retained on a personal basis for the incumbents at the moment of transfer, and that this means what it says; they were purely personal to the postholder.
In order for the complaint to succeed I am being asked to find that the grading structure of the previous organisation retained its integrity following its incorporation.
I was offered no evidence to support this idea, it is not logical, and I decline to do so.
I also find the complainant’s reliance on remarks made at her interview and prior to the incorporation into the respondent to be of no consequence at this juncture, especially as she did nothing to seek delivery of this commitment within the timeframe that was indicated to her.
The complainant is seeking to establish a relationship with a colleague whose grade is purely personal to her and does not exist within the respondent’s grading structure. As an industrial relations proposition this has little, if any merit.
The internal processes of the respondent on three occasions concluded that the correct grade for complainant was its Grade 8.
By its own logic, and in equity it is required to implement that conclusion and the continued grading of the complainant at a level €14,000 below that is quite unacceptable, although the complainant has made a significant contribution to this and it is hard to understand why she, (a HR professional) did not recognise such a significant offer of improvement in her salary as a positive step forward.
There are hurdles in relation to sanction to be overcome to achieve this now but the process of doing so should commence without delay.
And while I take account of those sanction requirements, they cannot be relied on to perpetuate a salary inequity and in the meantime, I believe the logic of the respondent’s own position requires that an interim solution be found, and an acting up arrangement should be put in place subject to the respondent’s procedures.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I do not uphold the specific complaint but recommend strongly that immediate steps be taken to ensure that the complainant is offered the opportunity to compete for a Grade 8 position as soon as possible.
In the meantime, I also recommend that an interim, acting up solution should be put in place in line with the respondent’s procedures for acting up arrangements.
Dated: 29th May 2019
Workplace Relations Commission Adjudication Officer: Pat Brady