ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00024108
A Section Manager
A Non-commercial State Body
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: 04/12/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This dispute was submitted to the WRC on September 11th 2019 and, in accordance with Section 13 of the Industrial Relations Act 1969, it was assigned to me by the Director General. I conducted a hearing on December 4th 2019, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the dispute. The complainant was represented by Ms Shonagh Byrne of SIPTU. The respondent was represented by Mr Terence McCrann of McCann Fitzgerald Solicitors, assisted by Mr David McCauley. The respondent’s Head and Deputy Head of Human Resources (HR), the Director of Corporate Services and the Director of Commercial Operations attended and made submissions at the hearing.
This grievance arises from the dissolution of an organisation, “T1” and the merger of its functions with “T2” to form a new, non-commercial, semi-state utility, “T3”. Prior to the establishment of T3 in August 2015, T1 operated as a commercial state company and salaries were not aligned with public sector grades. One of the consequences of the merger was that the jobs of the employees in T1 were reviewed, so that, on moving to T3, their salaries were matched to public service pay grades.
The complainant occupies what he described as “a very specialist” role in the respondent’s organisation and, to protect his confidentiality in this document, I will refer to him as a “section manager.” In this capacity, four employees report to him. He is a chartered engineer and he joined the predecessor of T1 in November 2000. Before that, he worked in the manufacturing, pharmaceuticals and heavy transport sectors. With the establishment of T1 in 2003, he was appointed as a section manager and by 2008, his salary was €109,000. At the time of the merger of the two organisations, he was the staff representative on the board of directors.
In anticipation of the transfer to T3, the complainant’s job was evaluated and he was assigned to the grade of Assistant Principal (Higher) (APH). At the hearing, I was informed that, from September 1st 2019, this grade has a pay scale of €67,434 to €83,510. As a senior manager in an engineering role, the complainant objects to being assigned to a public service administrative grade. He points to the difference between his salary and the top point of the APH grade as indicative of what he considers the gross injustice that has occurred and he argues that he should have been assigned to the grade of Senior Advisor Level 1 (SAL1), which is the grade to which the majority of employees at his level in the organisation have been assigned.
In his submission, the complainant said that an extensive grading process was carried out internally in T1 in 2014 and his job was positioned at the grade of SAL1. When this exercise was set aside by the Department of Transport, Tourism and Sport (DTTAS), in March 2015, in consultation with the Department of Public Expenditure and Reform (DPER), DTTAS entered into a protocol agreement with the Irish Congress of Trade Unions (ICTU) and SIPTU concerning the mechanism for a new grading process to position jobs in T3. In April, a consultancy firm was engaged to carry out the grading exercise and in June, the complainant was informed that his role was that of APH. He appealed against this designation to the grading steering group, but without success. He then appealed to the chief executive, but his grade remained unchanged.
In March 2016, the complainant and around 17 former employees of T1 engaged in conciliation to make a case for an external appeal process to examine their grades. With no resolution from that process, the parties attended a hearing at the Labour Court in March 2017. In its decision, (LCR21420), the Court advised against a new avenue of appeal and recommended as follows:
“The Court notes that the Respondent is prepared to make the firm (XY) available to consult and engage individually with all of the claimants before the Court. The Court recommends that this engagement should happen and that the individuals should be facilitated to explore fully the processes employed by (XY) and the information utilised by (XY) in making decisions or recommendations including as regards the description or content of the roles considered.
“The Court further recommends that, in the event of any individual remaining dissatisfied after that engagement, they should utilise the already existing grievance procedure in place in the organisation to process any grievance they may have as regards the appropriateness of the grade they occupy as against the duties or functions they are required to carry out. That grievance procedure, the Court understands, can involve referral to the Adjudication Service of the Workplace Relations Commission as necessary.”
In May 2017, the complainant took up the offer of engagement with the consultancy firm. He remained dissatisfied with this discussion and in December, he submitted a grievance in accordance with the organisation’s grievance procedure. In May 2018, the management confirmed that his grievance was not upheld and he appealed this finding. In August 2019, he was informed that this appeal was also unsuccessful and in September, he submitted this complaint for adjudication at the WRC.
The complainant is seeking that his role be assigned to the grade of SAL1. The top point of the scale for this role is more than €12,000 less than his current salary, but he argues that this claim is “not about salary but instead about the recognition of the role for me and my successors.” As a resolution to his grievance, the complainant asks that I recommend that he is assigned to the grade of SAL1. Alternatively, he asks that I recommend that a new grading exercise be carried out by a different external consultancy firm and that he is involved at each stage of the process.
Summary of Complainant’s Case:
The complainant submitted a comprehensive description of his job with T1, which he continues to carry out in T3. From the establishment of T1 in 2003, he has been involved in the planning, procurement and installation of light railway infrastructure across Dublin in all its phases. He has experience of developing long-term, high value maintenance contracts and of managing multi million euro projects. As a section manager in T1, he said that his role, as it developed, “was not always tailored by a management team…instead [was] developed by the individuals themselves through their own foresight and pro-activity in terms of seeing a need and addressing it effectively.”
Concerns about the Grading Process
The complainant set out his concerns with the grading process carried out by the consultancy firm:
He said that an internal calibration committee established to review the initial grading process carried out by the consultants included no staff representatives. Of 141 employees in T1 who moved into T3, 118 were not interviewed.
The complainant said that some of the 118 roles, including his own, were very specialised, but were simply slotted into the pre-defined structure “as best the joint knowledge of (the consultants) and the calibration committee would allow.” He claims that 84% of former T1 employees were slotted into roles and that T2 staff transferred on their current grades.
The union was not given a full briefing on the methodology of the process.
No information on the scoring was forthcoming, other than the overall “sizing” of T3 as a whole.
The internal calibration committee guided the outcome of the process in keeping with the constraint that it was required to fit within the T3 organisational chart.
There was no clear record between the consultancy firm and T3 regarding the assessment of roles.
The outcome of the process resulted in the complainant being assigned to a pay grade with a lower maximum point than his current annual salary.
The complainant referred to a statement in the respondent’s submission to the Labour Court in March 2017, informing the Court that the grading process “focussed on the nature of the role and not the job-holder’s competencies, performance, qualifications or salary.” He said that “it seems unconscionable that these matters would not be considered, nor was there any discussion with me about my role over the course of the grading process.” The outcome from the grading process is that his role has been positioned as an APH, which, he submitted, is a clerical grade never previously applied to a technical or engineering role in T1. He said that for grades senior to Engineer Grade 1 (grades that report to him), the norm is SAL1.
In his submission, the complainant argues that “it is extremely noteworthy” that, on the former T2 side of the company in the public transport division, all the roles that report to his line manager’s peer are at the SAL1 grade, whereas only three of the six roles that report to his line manager are at this level. He said that his role and two others, all with very significant, specialist, engineering responsibilities, were assigned to the grade of APH. It is his contention that this was as a result of the constraint imposed on the permitted size of the organisation by DDTAS and DPER. While he recognises that some constraints must apply, his view is that, in the main, this has affected roles from the former T1 and that this is contrary to the government’s promise to treat the staff from both organisations equally.
Efforts to Address these Concerns
At the initial internal panel established to consider appeals against the designated grades, the complainant said that appellants were not allowed to make submissions or to raise new information or information obtained during the job evaluation process. Around 60 employees appealed against the grades to which they were assigned and just five had their grades uplifted. Following an internal appeals process, 18 employees referred their grievance for conciliation and then to the Labour Court. The union sought “an external, independent and transparent job evaluation body” to be established. As I have noted in the “Background” section above, the Labour Court decided against this course of action and recommended that the 18 employees be provided with an opportunity to engage on a one to one basis with the consultancy firm to examine their concerns.
Meeting with the Consultancy Firm in May 2017
In May 2017, when he met the consultants to discuss his job grade, the complainant said that they informed him that they would normally carry out a due diligence exercise initially and then an impact assessment after the grades were assigned, but they claimed that this was not required by T3.
At the meeting with the consultants, he said that they didn’t understand what his job involved and that they were “gob-smacked” when he described what he did. He was informed that a “global grade” of 12, corresponding to the lowest level of middle management had been applied to his role as section manager. He said that the consultants reached this conclusion following a “cursory read” of his job description. He said that he was informed that his direct line manager was interviewed about another person’s role and that his own job was “mentioned briefly during the course of that interview.” He said that this was later confirmed by his manager.
The Grievance Process
Following group and individual meetings with the consultants, the complainant submitted a grievance which was heard by two former T2 managers. When these did not support his case, he appealed and had a meeting with two senior managers from the former T2. He claims that the meetings “leant implicitly towards rejection” of his case, and the nature of the questioning appeared to have the objective of countering his position, rather than supporting it. He said that the negative outcome presented to him on July 12th 2019 contained “no definitive, supporting evidence whatsoever.”
The Complainant’s Position
Before the establishment of T3, when he was employed in T1, the complainant held a critically important role that was reflected in his salary of €109,000. He claims that there is no change to his responsibilities or his reporting line in T3 and his submission includes confirmation from his manager to this effect. He claims that he has been assigned to a role at the lowest level of middle management with a maximum salary of €83,510. He argues that his job is more appropriately aligned with that of three of his colleagues in the Public Transport Division, who have been assigned to roles at the grade of SAL1. The top point of the incremental scale for this role is approximately €97,000 and therefore still €12,000 below the complainant’s current salary. He said that he is prepared to accept this differential.
The complainant’s case is that “there was preferential treatment” of staff in T2 and that DTTAS “baulked at the prospect of 150 joining the Department.” He suggests that T2 employees were transferred into the new organisational structure, leaving a certain number of places for T1 roles, as the funding would allow. He said that his salary of €109,000 in T1 was a reflection of the commercial value of his role. He said that the grading process has caused “unnecessary and considerable distress” over the last four years. He claims that the T3 grading process was constrained by the sizing of the organisation and the impact of that constraint had a negative effect on the staff from T1. He contends that he has suffered most grievously, because of the perception that his current role is less significant than the job he did T1 and because of the long-term detrimental impact on his entitlement to incremental increases and on his pension.
Summary of Respondent’s Case:
The Grading Exercise
In April 2015, following consultations with DPER, a protocol for a grading review was agreed between DTTAS, ICTU and SIPTU. The protocol agreement provided that,
“A grading exercise for (T1) staff will be carried out in an open and transparent manner with the use of external expertise, as required, and under the auspices of a steering group. The process will include an appeals mechanism and, in the event of non-resolution, will be subject to the normal industrial relations disputes resolution exercise.”
An external consultancy firm was appointed to carry out the grading exercise for the roles to be filled by T1 staff in the new T3 organisation structure. The consultants were given the job descriptions of each employee in T1, but no salary information was provided. In April 2015, employees were issued with a very detailed description of the process involved in the grading exercise and a copy of this note was submitted in the respondent’s book of documents. In May 2015, staff were informed of the process that could be used to appeal against the outcome of the grading process.
As part of DPER’s oversight of the establishment of T3, an “employment control framework” was developed outlining the grades to apply in the organisation; however, the consultants were not issued with this document, so it was not instrumental in the assignment of grades to T1 employees. The control framework set out a grade profile for the organisation to be achieved within three years and the respondents claim that this was not a factor in the grading exercise.
In accordance with the protocol agreement, a steering group of management representatives was established and this group had overall responsibility for governance and delivery of the grading exercise.
The task of the consultants was to determine the appropriate public sector pay grade for each job in T1 and, to position the roles of the transferring employees in the newly-established organisational structure of T3. The respondent’s submission provided details of the methodology used to achieve this goal, described as a “job levelling tool.” The objective of the methodology is to evaluate the contribution of a role to the organisation and to determine the internal relativities or rankings, between roles. This exercise is carried out by reference to seven standard factors:
i Job functional knowledge
ii Business expertise
v Nature of impact
vi Area of impact
vii Interpersonal skills
The application of this methodology was said to focus on the nature of the job and its contribution in the organisation as a whole, and not on the job-holder’s competencies, performance, qualifications or current salary.
The sequencing of the job-levelling process can be summarised as follows:
1. The sizing of the organisation and the ranking of the chief executive officer.
To determine the “company grade,” the consultants first determined the grade of the most senior role in T3, that of the chief executive officer. Based on its size and function, T3 itself was ranked as 18 on a scale of 1 to 25. Based on this grade, the organisation would be comprised of three bands of managerial roles (supervisor, middle management and top management) and three bands of individual contributor roles (administrative, professional and subject-matter expert).
2. The identification of “anchor roles” in T1 and T2.
Out of 185 distinct roles (not people), a sample of 35 roles of varying levels and technicality were identified as anchor roles, of which, 23 were from T1 and 12 from T2. These 35 roles represented 200 positions across the new organisation. The remaining jobs were considered to be “non-anchor” roles.
3. The assignment of a “global grade” to the anchor roles.
The consultants held approximately 30 meetings with managers and directors to develop an understanding of the anchor roles by reviewing job descriptions and seeking supporting information. Each role was assigned as belonging to the manager or individual contributor band (described at 1 above) depending on how it functioned in the organisation. The anchor roles were then graded in accordance with the seven factors of the job levelling methodology (described at i to vii above), resulting in what was referred to as a “global grade” for each role. This positioning of the anchor roles was described as enabling the consultants “to identify the spine of the organisation, by reference to which the non-anchor roles could be graded.”
4. The assignment of a “global grade” to the non-anchor roles.
The job descriptions of the non-anchor roles were reviewed in the same manner as the anchor roles and they were incorporated into the new organisational structure based on their reporting relationship and their relationship to the anchor roles. From the information presented to me at the hearing, I estimate that approximately 80 individuals occupied these non-anchor roles, of which the complainant is one.
5. The assignment of a public sector pay grade to all jobs.
In January 2015, DPER had determined the public sector grades to apply to the chief executive and certain senior positions in T3 and these top-level appointments established the ceiling for all other roles. For jobs other than the top-level appointments, where a T1 role had been assessed at the same global grade level as a similar job in T2, the existing T2 public sector grade was applied to the T1 job. For jobs, such as that of the complainant, that did not have an equivalent in T2, the steering group sought comparisons with similar jobs in organisations such as the Office of Public Works, Dublin City Council, the National Transport Authority and the Chief State Solicitor’s Office. T1 employees were informed of their public sector grades on June 11th 2015.
Response to the Complainant’s Grievance
Setting out its position that the complainant’s pay grade has been properly determined, the respondent made the following points in relation to the grading process and the outcome:
The complainant has criticised the grading exercise and claims that it was constrained by the sizing of the organisation at grade 18 (out of a possible 25). The respondent submits that the process was conducted in accordance with the protocol agreed with DTTAS and with ICTU and SIPTU. The consultants were independent in the performance of their functions and were given access to the information necessary to carry out their task. Employees were informed of the basis on which the consultants would conduct the grading exercise and they were also informed that the performance, skills, qualifications or salary of the job-holder were not relevant to the process.
Based on this premise, that the job and not the job-holder informs the grading exercise, the consultants were not informed about the complainant’s salary, or the amount he was paid for serving as a board member of T1. In accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE), no transferring employee had their salary reduced as a result of the merger. At the hearing, I was informed that, since the transfer in August 2015, the complainant has received national pay awards that applied in the public service. The respondent’s submission also notes that, if it had been possible for him to remain in T1, there would have been no scope to increase the complainant’s salary.
Since the establishment of T3, over 100 recruitment competitions have been held for a range of roles, some of which are more senior than the APH grade that the complainant now occupies. The complainant’s salary is currently in excess of the top point of his grade, but he has ongoing opportunities for promotion in T3 that were not available in T1. T3 has also invested in developing a tailored senior leadership programme to prepare employees for more senior positions, for which the complainant is eligible to apply.
The job levelling methodology used by the consulting firm focuses on the nature of each role in the organisation as a whole and not on any particular role in isolation, and not on the competencies, qualifications, performance or salary of the job-holder. The complainant’s role was not identified as an anchor role and his line manager did not flag any matters about his role during the course of his meetings with the consultants about other roles.
The complainant believes that the grading process did not take into account the different operational models in T1 and T2 in light of what he considers was a policy of outsourcing in T2. The respondents submitted that the consultants were focussed on assigning roles based on the emerging organisational structure of T3.
The assessment of the size of the organisation at grade 18, and the determination that that is the grade of the chief executive, establishes a ceiling for the grading of all other roles. Similarly, the grades of the heads of departments sets a ceiling for the grades of the roles that report to them.
The consultants engaged in the grading process met with directors and managers, who had an input into ensuring that the consultants understood the job descriptions and the contribution that each role would play in the new organisation. It was only after the Labour Court recommendation of March 2017, that individual employees had an opportunity to discuss their own roles with the consultants.
The respondent asserts that, contrary to the complainant’s submission, the consultants were not presented with an organisational chart into which T1 roles had to fit. They said that the consultants were provided with high level charts “to indicate the overall shape and form of the organisation” but they had full autonomy to assign appropriate grades within the grading structure.
Following the Labour Court recommendation in March 2017, the complainant met with the consultants to discuss his job description and to make a case that he should be at a higher grade. In October 2018, during his final appeal, the two senior managers hearing his appeal interviewed the complainant’s former line manager who had been a director in T1 and who, by the time of this meeting, had retired. In consideration of his appeal, the views of his former manager were taken into account. The manager had acknowledged the importance of the complainant’s role in T1 and he also acknowledged that the external grading exercise was the fairest means by which to assign grades, although he said that he had not fully appreciated “the nuances of the methodology.”
It is the respondent’s case that, while the complainant objected to the fact that his manager was not consulted as part of the grading exercise, he was consulted during the appeal. The respondent’s case is that a public sector grade has been assigned to the complainant’s role in light of a job description which was updated by him in consultation with his manager. While the complainant indicated that he didn’t pay enough attention to the drafting of his job description, his appeal was considered in light of all the information he submitted about his role.
Before they reached a conclusion regarding the complainant’s appeal, the two senior managers met with the HR and corporate services team who had been involved in the grading process. A copy of the note of this meeting was included in the complainant’s book of documents at the hearing.
Responding to the complainant’s concern that a due diligence and impact analysis exercise was not conducted by the consultants in the course of the grading exercise, the employer submitted that the focus of the exercise was on the job, and not the incumbent. Employees were informed that their performance, skills or other personal attributes were not grounds for appeal, nor were qualifications in excess of what was required, or current salary. The focus of the grading exercise was the nature of the complainant’s role, and not the complainant himself and this was considered in light of the job description provided by him in consultation with his former manager, and any additional information provided during the grievance and appeal processes.
In 2015, when the staff of T1 were transferring to T3 under TUPE, they were asked to select from two options; the first was to transfer on new public sector terms including access to the Single Public Service Pension and the second option was to remain on T1 terms and conditions. This option requirement arose from the terms of the protocol between DTTAS, T1, ICTU and SIPTU. At the hearing, the complainant said that he interpreted option one as an implicit acceptance of the role and the grade to which he was assigned. He refused to sign either option, which meant that he defaulted to option 2, remaining on his current terms and conditions. However, if he had selected the first option, he would not have been prevented from pursuing his grievance about his grade. The respondent’s submission notes that, of the 172 employees from T1 who transferred to T3, the complainant and two others opted not to accept public service terms and conditions.
As a result of the transfer to T3, some former T1 employees received salary uplifts as a result of the grading exercise. In the complainant’s case, his salary was “red-lined” because it exceeded the maximum point on the APH grade assigned to his role. He argued that the imposition of the APH grade is a deterrent for qualified and skilled people who might want to apply for the role in the future. The respondent submits that the job that the grade of APH is considered to be a senior grade in T3 and the wider public service and other roles at this grade have attracted a sufficiently qualified pool of candidates.
The complainant asserts that it is the principle of the public sector grade assigned to his role that causes him the most concern, and not the salary. He perceives that he has lost the professional respect of his colleagues as a result of the assignment of the APH grade to his role. The respondent’s submission states that the complainant is a valued and respected employee, whose contribution to the organisation has been excellent. The grade of APH is not a clerical grade, as argued by the complainant, but is a senior grade that has been applied in T3 and across the public service to senior technical and administrative roles.
Conclusion of the Respondent’s Position
Concluding their case that the complainant’s job is correctly positioned as an APH, the respondents said that the grading exercise was one component of the merger of T1 and T2 and was designed to ensure that the staff from both organisations were treated fairly. They submitted that there is no substance to the complainant’s suggestion that the motive behind the grading exercise was financial, arising from economic restraint and they said that any suggestion that the complainant is a victim of this is misconceived. The exercise was conducted by external consultants was entirely objective. It achieved a fair outcome for employees in light of the new structure of T3 and in accordance with the protocol agreed with the stakeholders, including SIPTU.
It is the respondent’s position that the grade given to the role of section manager was assigned based on a fair, independent and internationally-recognised grading methodology. It reflects the assignment of public sector grades to the roles of former T1 employees in a manner consistent with public sector practice. The grading exercise took account of the specific responsibilities of the complainant’s role as set out in his job description, the grades assigned to certain senior roles as determined by DPER, the scale and complexities of T1 and T2 and the steps involved in integrating both organisations.
Finally, the respondent’s submission cautions against any change to the complainant’s pay grade, “arising otherwise than through normal competitive promotion processes.” Any changes to the public sector grades assigned five years ago now could impact on others in the organisation, including some who have been promoted. For this reason, any disruption to the grades assigned in T3 could have a significant impact on T3’s organisational structure, its organisational stability and potentially, on its funding from DTTAS. It is apparent that these factors influenced the Labour Court in its June 2017 recommendation:
“The Court must respect the fact that those processes appear to have produced a stable organisational structure with a grading framework which is not disputed in terms of its application by the vast majority of staff to whom it applies and which has been in place for approximately two years.”
Findings and Conclusions:
In 2010, work commenced on a proposal to merge T1, a commercial state agency, it with a non-commercial semi-state organisation. On August 1st 2015, 172 employees from T1 transferred to the new entity, T3. Paragraph 2 of the Protocol Agreement of March 31st 2015 between DPER, DTTAS, ICTU and SIPTU contained the following provision in relation to the employees in T1:
“Having full regard to the staff protection elements of the Roads Bill 2014, it is the position that the Public Service Agreement 2010 – 2014, the Haddington Road Agreement 2013 – 2016 and applicable Public Service Management and other relevant legislation set out the provisions in relation to the employment of public servants. These provisions state, inter alia, that the terms and conditions of employment of (T1) staff, including terms and conditions relating to remuneration will on their transfer to the receiving public service organisation, be no less favourable than the terms and conditions that applied before the merger into (T3).”
Paragraph 4 addresses the grading of staff:
“A grading exercise …will be carried out in an open and transparent manner with the use of external expertise, as required and under the auspices of a steering group. The process will include an appeals mechanism and, in the event of non-resolution, will be subject to the normal industrial relations dispute resolution process.”
As a new and critically important public sector utility, DPER and DTTAS had oversight of the development of the structure of T3 and the grades of the chief executive and top-level managers. The “sizing” of the organisation, the job size of the chief executive and the grades of the top-level management was the framework from which an organisational structure was developed and all the reporting roles were positioned.
From the discussion at the hearing of this dispute, I understand that the grading process resulted in some jobs being assigned to a grade with a higher salary than the job-holder was paid in T1. As a result, on the establishment of T3, the salaries of these employees were increased. Some roles, such as the complainant’s, were assigned to a grade with a lower maximum point. The salaries of these employees were “red-lined,” meaning that they will not get an incremental increase until their current salaries are less than the top point of their new grade. While red-lined employees have no prospect of incremental pay increases for a considerable period, they remain entitled to any agreed public sector pay review. On the date of the merger of T1 and T2, the complainant’s pre-FEMPI* salary was €109,000. With the effect of recent increases, on the date of the hearing, December 4th 2019, his salary was €113,610. The complainant claims that he would be content with being assigned to the SAL1 grade, which has a maximum point of around €97,000. He accepts that he would not get an increase until the maximum point of that scale is equivalent to his current salary.
Concerns about the Grading Process
I wish to address the complainant’s concerns about the grading exercise. In the first instance, I cannot accept his assertion that SIPTU was not briefed on the methodology used to carry out the exercise. I was presented with the respondent’s submission to the Labour Court in March 2017, and included as an appendix is a document issued to employees in April 2015 with the title, “Grading Exercise - Note to all Staff.” This contains a clear outline of the job grading plan and the system used by the consultants to carry out the grading exercise, including a description of the information sought under the seven grading factors which have been set out in the previous section. I note from the Labour Court submission that a collective agreement was established between SIPTU and T1 in 2010 and I think it is highly unlikely that SIPTU did not receive a copy of this document when it was issued to employees, if not beforehand.
The outcome of the grading exercise leads to a decision on the “size” of each job within the overall structure. Having been involved in similar exercises in the past, I have never known the outcome to be shared with job-holders. The reason for this is that the subject of the exercise is the job description and not the job-holder. The job description is the basis of the determination of the size of each job and the process takes no account of the views of the job-holder regarding his or her personal role.
This leads to the complainant’s concern that the external consultants did not understand the complexity of his job as a section manager. He also complains that his line manager was not directly consulted about his role, on the assumption he thinks, that it would be graded at a more senior level than APH. The steering group, comprised of three senior managers, supported by a project team, was responsible for ensuring that the consultants were fully appraised about the function of each job. This outcome from the initial exercise was then reviewed by a calibration committee. If there was any deficit regarding the scope of the section manager job provided to the consultants, the complainant had the opportunity to rectify that when he met them in May 2017. Having briefed the consultants regarding his job and its contribution in the organisation, the outcome remained that he was graded as an APH.
During the appeal process, the complainant had the benefit of the insights of his former manager who contributed to a consideration of his grievance by two senior managers of T3 in October 2018. It is interesting to note that his manager suggested that an appropriate “global grade” would be 16 or 17 out of a possible 25, making him eight or nine points below the most senior role in an organisation. In their deliberations, the consultants positioned the complainant’s job at a global grade of 12 out of an actual 18 grade, which is six points below the most senior grade. This is my rather crude analysis of the gap between the complainant’s job and the job of the chief executive and I know from his additional paperwork that he objects to any focus on this point. The respondent’s submission contained a more sophisticated analysis which found that there was no difference between the former manager’s estimate of the complainant’s grade and the findings of the consultants.
The complainant has a concern that the calibration committee whose job it was to review the grading of the roles did so within the constraint of the organisation structure determined by the directors of T3, in line with the requirements of DPER and DTTAS. The calibration committee was required to operate within the framework of the size of the organisation and the job levels of the chief executive and senior management, which had been approved by DPER. In my view, this was the correct approach to the establishment of a new, publicly-funded organisation. I also have no concern about the fact that staff were not represented on the calibration committee. The calibration of the grading outcomes was the responsibility of managers. I understand that a robust consultation process was established between the respondent and SIPTU and that a staff forum was also set up to facilitate discussions between employees and management on the merger activities. It is my view that, through these forums, the concerns of employees could be addressed.
The complainant’s overriding concern is that T1 jobs were “slotted in” to the structure after preference was given to the jobs of T2. I understand however, that, out of 35 identified anchor roles, 23 of these were T1 roles. Having established the anchor roles, the non-anchor roles were allocated a position and a manager in the organisational structure. As we know, the salary, qualifications, competence and current performance of the job-holder has no bearing on the grade allocated to any role.
I have no doubt that the members of the calibration committee must have been uncomfortable with the anomaly that emerged from the grading review of the complainant’s job. The allocation of the grade of APH meant that his salary was more than €25,000 above the top point of the incremental scale. The existence of an anomaly is an uncomfortable fact, but it does not follow that it can or should be eliminated. In the overall context of the objective to put together a structure for the new organisation, it was necessary to accept that the public sector pay grades would not accurately match the current salary of every employee.
Reason for the Anomaly
Throughout the process that followed the initial determination of his job as APH, and at the end of each appeal, the complainant claims that he was not given a clear rationale as to why his appeal was unsuccessful. While it is not my role to provide this rationale, I wish to bring this grievance to a conclusion and I see no possibility of achieving that without addressing the reason for the anomaly.
Every job in T3 (and any properly-structured company) is determined by reference to the size of the organisation and the grade of the top-level managers. In blunt terms, it is the difference in the contribution of top-level managers and every other job in the organisation, that determines the value, and therefore, the pay grade, of the other jobs. Of course, there can be exceptions to this rule, but generally across the public sector, this hierarchical principle applies.
The complainant argues that his job is specialist in nature and that it developed to its current form as a result of his specific contribution to the organisation and “pro-activity” on his part. In a commercial environment, where the approach to grades and salaries may be aligned to an individual’s skills and competencies, there is scope for this “bespoke” approach to grading. In the public sector, which employs a considerable proportion of the Irish working population, such an approach would be fiscally reckless. This is the reason why, when considering a job, some people opt for the security of the public sector, and others prefer the private sector, where job security is never guaranteed, but the prospect of higher earnings is greater.
In the new organisation, I understand that there are a number of jobs that are specialist in nature and the objective of the grading process was to find a fit appropriate to the value of each one. The outcome of the initial grading exercise in April 2015, that the complainant’s job was an APH was determined by a finding that the gap between his job and that of his line manager was appropriate, and at each appeal, this finding was upheld. This is an uncomfortable truth but, having sought guidance from the external and independent experts, the management has determined that the job that the complainant holds makes a less valuable contribution to the organisation, in financial terms, compared to the jobs at the grades above.
The reason for this lies in the outcome of the analysis of the job description for the role of section manager against the seven components used in the job levelling exercise:
i Job functional knowledge
ii Business expertise
v Nature of impact
vi Area of impact
vii Interpersonal skills
When they examined the job description for the job of section manager against these criteria, the consultants and the management determined that, from a technical and managerial perspective, it does not carry out the same range of responsibilities and it does not have the same degree of impact as roles at a higher level.
I am mindful of the effect that this change in the status of his job has had on the complainant; however, this outcome reflects how his job fits into a new organisation with a wider remit as a public utility. In simple terms, it is not about him. The change is not related to the complainant’s performance or his work ethic, or any personal attribute, and I think he understands this, although it must be difficult to accept.
In summary, before the merger, the complainant occupied a specialist role in a time of significant investment in the sector in which he worked. From a combination of his skills and efforts and his good fortune to be involved in a once-off public infrastructure project, he gained valuable and unique experience. Added to this, his employer was a commercial entity that had the scope to offer attractive salaries. After the merger, he became part of a larger, public sector body, with stringent and necessary controls on job grades and salaries. His job in the new organisation has a different value and status compared to that which it held in the old organisation. If his role was vacant today, it is highly unlikely that it would be filled by a candidate with his experience. The salary that the complainant earned in T1 does not contribute to the value of his role in T3. This is not a reflection on him or his previous performance.
I have now considered this matter and I have examined both submissions in detail. I have also considered the supplementary document provided by the complainant in response to the employer’s submission. Despite the complainant’s reservations about the outcome of the grading exercise in 2015, there was no evidence that the consultants did not act in a fair and transparent manner or that they were not independent. It is my view that, even with the anomaly that arises regarding the complainant’s role and his current salary, there is no merit in commencing a new process by different consultants. Finally, I must consider the fact that, on four occasions at appeal, the grade of APH was found to be the appropriate grade for his role. Taking all of the information available to me into account, I have concluded that the job the complainant currently occupies is correctly graded.
As I have already observed, the determination of a job grade is not personal and is not a reflection on the complainant’s work. He has suffered no diminution in his terms and conditions of employment as a result of the transfer and he continues to occupy a role that offers him a platform for development across many aspects of public infrastructure. He could take the view that, on balance, the outcome of his transfer to T3 is more positive than negative. I would encourage him to consider this examination of his grievance as the end of the dispute resolution process.
*FEMPI: The Financial Emergency Measures in the Public Interest Act 2009 had the effect of introducing pay cuts for public sector employees. A phased reversal of the pay cuts began in 2016.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the respondent takes no further action regarding this dispute.
Workplace Relations Commission Adjudication Officer: Catherine Byrne