ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00027947
A research fellow
Barnaba Dorda SIPTU
Niamh No Cheallaigh, Ibec
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: 30/04/2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
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 to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The employee commenced his employment with the Respondent in 2000 and from 2005 he has been employed as Research Fellow. Throughout these years he was employed on a series of fix term contracts designed for a specific project.
The hearing of this complaint took place via a remote hearing on 30th April 2021.
Summary of Complainant’s Case:
The case is taken by SIPTU on behalf of a member in relation to his dispute with his employer, over his level of salary. It is the employee’s complaint that he wishes to be given the same opportunity to progress on salary scale as other colleagues who are employed as Research Fellows. Since 2009 he has been employed on a CID and - in respect of that permanent contract - his salary has not changed throughout last 11 years and currently it is below point 1 for Research Fellow scale.
He seeks a recommendation upgrading his salary in line with the most recent assessment done for the purposes of a secondment project, or in the alternative, that he is given the opportunity to have his salary assessed by a relevant Principal Investigator, in line with the employer’s policy and his contract of employment.
The employee commenced his employment with the Respondent in 2000 and from 2005 he has been employed as Research Fellow. Throughout these years he was employed on a series of fix term contracts designed for a specific project (“Project Secondment”). Salaries for such Research Fellows are governed by “The Salary Policy for post-doctoral researchers and research assistants”.
The employee is a very experienced and skilled employee. He has been working for the Respondent employer in 3 different research groups, he has also co-authored academic MS with 4 other Universities groups. He has very good outputs: >70 papers/patents; most as the corresponding author; few PhDs co- supervised. He has vast experience in quality research, teaching, lab and finance management. Last but not least he was involved in the discovery of potentially world changing phosphorus recycling technology.
In early 2010’s, as he continued to work for more than 4 years on fixed term contracts he requested a CID. This led to a dispute and around 2012 the Respondent conceded to the employee’s claim.
The employee continued to work, and while being on a permanent contract, from time to time our member was offered work on different projects. For these periods he was given a fixed term contract, with different, in all cases higher, salary. Upon expiration of such fix terms contract, he was reverted to his normal position (CID) with previous level of salary.
The most recent case of such a fixed term contract was the one for a period between April 1st, 2020 and 31st of March 2021. He was offered €57938 corresponding to FTE point 3 on the relevant pay scale. This contract clearly stated that “At the completion of this secondment, from 1 April 2021, you will revert to your substantive contract of indefinite duration with the salary at the rate of €52,702 per annum”.
Salary progression of Research Fellow
As per understanding, in line with the employer’s policy “The Salary Policy for Post-doctoral Researchers and Research Assistants” there is no automatic progression for Research Fellow.
To define the level of salary for a Research Fellow, each time when a post is created for each such secondment project, a designated person called “The Principal Investigator” (PI) would be responsible for proposing a salary at a point that is compatible with the applicant’s (employee’s) skills and experience and competitive with their existing remuneration or remuneration being offered by other prospective employers.
The general guideline is that such an employee should be paid within the relevant range of points, following the Principal Investigator’s consideration of the following factors:
· The general experience and skill level of the individual
· Their qualifications
· Salary rates already being paid to any staff with similar skills and experience on the project
· Any discipline specific considerations
· Uniqueness or otherwise of the skill set.
Given the above, each time a Secondment fix term contract is created, level of salary for such Research Fellow depends mainly on employee’s skills, experience, and qualification (and some few other factors). These criteria are assessed by a Principal Investigator at the inception of Secondment. But there is no automatic progression as the salary is fixed.
However, if an employee believes that he or she is underpaid, he can request a review of his salary. In line with other non-scale staff, the PI may make a case for a change in salary level taking account some key factors i.e. the individual’s performance and/or that the employee has already been aligned to the agreed rates for Research funded staff. A twelve-month period must elapse between such submissions.
Thus, there is a mechanism to possible increase of initially fixed salary for Research Fellows.
At this point it is important to note that these above terms were applicable to the employee’s fixed term contract from 2009 which subsequently, by operation of law, became the permanent contract. Thus, the mechanism, as described above, is applicable to our member’s CID.
Summary of facts
The employee’s salary related to permanent contract has not much changed save for slight increases in line with the post-Haddington Road process. His salary for the purpose of his CID was based on 2008 assessment by relevant Principal Investigator. There was no further assessment of his salary linked to this specific contract (CID) within the last 12 years.
Between 2009 and 2020 a number of assessments were carried out by Principal Investigator(s) for the purposes of various different fixed term contracts. As a consequence of the most recent assessment done for the purpose of the fixed term contract for a period between 1st of April 2020 and 31st of April 2021 the employee was offered point 3 at the Research Fellow scale.
His current permanent contract level of salary is below point 1 of the Research Fellow scale (as there was no proper review of his salary).
The employee lodged a grievance in relation to his level of pay linked with his CID but to no avail.
There is a mechanism to review the employee’s level of salary linked to his CID, should be carried out by the Principal Investigator relevant to his terms and conditions of his permanent contract of employment.
His current level of salary linked to CID does not reflect his qualification, skills, experience – relevant criteria which are used to define level of salary for Research Fellows in the Respondent organisation.
Currently the employee is paid below point 1 of his relevant pay scale. That is just extremely unfair.
There is a mechanism to review such fixed salary, as per the University policy.
The most recent assessment done against these criteria (March 2020) carried out for the purpose of a fixed term contract resulted in assigning the employee point 3 of the salary scale, which is €57938 per annum. Thus, such salary is more reflective of what he should be earning on his CID.
Given the above, on behalf of the employee we wish to ask that the Adjudication Officer will recommend
a) bringing the employee’s salary level associated with his permanent contract of employment in line with the most recent assessment i.e. point 3 on the pay scale (€57,938 in 2020, currently €59,097) with effect from the time our member lodged a formal grievance,
b) in alternative, recommend reviewing his salary level and timeline for this in line with his terms and conditions of employment associated with permanent contract.
Summary of Respondent’s Case:
This complaint has been referred under section 13 of the Industrial Relations Act, 1969 in April 2020.
Under Section 13(2) of the Industrial Relations Act, 1969, an Adjudicator cannot investigate a dispute connected with rates of pay of a body of workers.
The Claimant is employed on a non-scale rate of pay and is seeking to be placed on an IUA pay scale for research staff on the basis that he is paid less than others employed as a Research Fellow performingthesame orsimilarwork.
However, it is not appropriate that this dispute be investigated by an Adjudicator as it involves a pay dispute that has wider implications than the Claimant.
The Claimant is employed on a CID contract which issued in 2009. This contract is a non-scale Research Fellow contract. When the Claimant was successful in being seconded to research contracts he was paid in accordance with the monies on offer on those contracts. However, when these contracts finish the Claimant moves back to his CID contract in line with the terms of those research contracts. This practice is applied across the University.
Even some Administration staff in the University can be employed on non-scale positions.
Therefore, this dispute has wider ramifications than the Claimant. Any recommendation issued will have implications across the University. As this complaint involves a dispute concerning the pay of a body of workers it cannot be investigated by an Adjudicator.
In fact, this point is recognised in the Claimant’s WRC complaint form which states
“If it is not appropriate for an Adjudication Officer to review and recommend a more appropriate scale point for my CID position, in alternative I’m seeking a recommendation that an independent review of my salary would be carried out.”
Even a recommendation that an independent review be carried out on putting the Claimant on a pay scale will still involve an investigation in order to make a recommendation in this case.
Introduction to Substantive Case
Without prejudice to its argument that the Adjudicator is not permitted to investigate this complaint the University rejects this complaint.
The Claimant is part of a pool of staff available to be seconded to research projects when they arise. When the Claimant ceases work on a particular research project, he then moves back to his CID contract and the salary attached to that contract until another suitable research project arises to which he can be appointed. The salary on the research contract can be higher than that of his CID contract but it can never be lower than his CID rate of pay.
Skilled Resources Pool
The University has the Skilled Resource Pool (SRP) policy for research Staff who have CIDs.
This is a policy covering research staff in the University that have been issued with contracts of indefinite duration (CID) and who must continue to be paid from and occupied on externally funded research work – unless they secure, through the normal recruitment processes, an alternative core-funded role.
The SRP is the mechanism through which research staff on Contracts of Indefinite Duration continue to be assigned to work on externally funded research projects. The SRP process is triggered when funding for contracts on a specific externally funded research project is coming to an end. If there are no available externally funded roles available, the funding costs for the individual falls to the School and the School also must allocate the individual work within the School.
Background to Claimant’s Employment
The Claimant commenced employment as a fixed-term worker. He was employed to work on a particular research project and the Principal Investigator for that project determined the salary based on the experience and skill of the individual and the funding available from the external funder. At that time the Claimant’s salary was €49,750.
Under the terms of the Protection of Employees (Fixed Term Worker) Act the Claimant became entitledto a CID as a Research Fellow in the School of Chemistry in 2009.His pay and other conditions ofemployment that applied in his capacity as a fixed-term worker were applied to his employment as apermanent employee.
The Claimant is currently paid €53,756 per annum. This reflects the application of public service pay increases since 2009.
Research Project 1
From September 1, 2010, to July 31, 2012, the Claimant was seconded to the P Stereogenic ProtideDrugs Project.
There was no change to his terms and conditions of employment. The Claimant’s salary was €49,775 per annum and it remained at that level for the duration of the research project. The letter confirming this arrangement states:
“When this assignment ends and if no further suitable externally funded research work is immediately available, you will revert to the College Skilled Resource Pool, pending reassignment to suitable externally funded research work.”
At the end of the secondment the Claimant reverted to the Skills Resource Pool.
Research Project 2
From September 1, 2013, to March 31, 2015, the Claimant was seconded to the research project - Construction of P-Stereogenie peptide drugs – again. The salary for this role was €52,852 per annum. The letter in relation to this secondment stated:
“At the completion of this secondment, from 1 April 2015, you will revert to your substantive contract of indefinite duration salary at the rate of €47,750 per annum.”
In line with the terms of the secondment agreement the Claimant returned to the SRP and a salary of €47,750.
Research Project 3
On June 30, 2015, the Claimant was issued with a letter by the HR Officer Research Funded Staff, confirming his employment on a secondment basis to the project Synthesis and Solid-State Pharmaceutical Chemistry. This contract was from April 1, 2015, to June 1, 2019. All the Claimant’s terms and conditions remain unchanged other than salary which was increased to €54,820. The letter in relation to this secondment states:
“At the completion of this secondment, from 2nd of June 2019, you will revert to your substantive contract of indefinite duration salary at the rate of €49,775 per annum.
When this secondment ends, and if no further externally funded research work is immediately available, you will revert to the College of Science Skilled Resource Pool, pending reassignment to suitable externally funded research work.”
At the end of this contract the Claimant reverted to the SRP and to his salary of €47,750.
On August 20, 2019, the Claimant sent an email to the Promotions & Gradings Specialist, in which he sought the following:
· His CID position be placed on the appropriate IUA Research Fellow salary scale, point 3, retrospectively starting June 2019.
· A provision for regular salary review and scale progression be made.
· Any shortfall arising between his remuneration and currently available research funding to be covered by the School in lieu of part-time Undergraduate and Graduate teaching as directed by the Head of School.
First Grievance Hearing
On November 4, 2019, the Claimant met with the Head of School, and HRP College of Science. A written response issued following this meeting. This stated that the Claimant was appointed in 2009 to a non-scale Research Fellow pay category within the School of Chemistry. Since then, he had been appointed to other research-funded roles and the terms and conditions of employment applicable to those roles were applied to the Claimant. Once these research-funded roles ceased the Claimant reverted to his CID contract and the terms and conditions of employment applicable to that contract. Irrespective of the length of a temporary research contract the Claimant will always revert to his CID contract and the terms applicable to that contract. The only mechanism by which this could change was if the Claimant was successful in an application for another permanent position. Pay restoration and increases had been implemented in line with Department of Education instructions. There was no mechanism within the University to place the Claimant on a different salary scale and thus no provision for salary review and scale progression.
On November 20, 2019, the Claimant sent an email to HR stating that he was dissatisfied with the outcome on the November 4 meeting and sought to progress the matter to the next stage of the University grievance procedure.
Second Grievance Hearing
On January 9, 2020, the Claimant attended a grievance meeting. The Claimant attended with his representative. On the management side the meeting was attended by tCollege Principal and Dean of Science, and a representative from Human Resources.
The Claimant again stated that he was seeking to be placed on point 3 of the IUA Research Fellow scale. He sought this to be made respective to June 2019 which was the date when his salary reverted to the terms of his permanent contract of employment.
On January 16, 2020, the outcome of the grievance was issued.
The outcome was that his claim that he had been treated unfairly was rejected.
The Claimant was treated in line with the current practice that is applied across the University in relation to research staff on CID contracts being seconded to research projects.
Research Contract 4
From April 1, 2020, to March 31, 2021, the Claimant was seconded to the research project Studies ofAsymmetric Grignard Synthesis - The salary for this roleis€57,938.
The letter confirming this position stated that:
“All other terms and conditions of your contract of employment commenced on 28 May 2009 will remain unchanged. At the completion of this secondment from 1 April 2021, you will revert to your substantive contract of indefinite duration with the salary at the rate of €52,702 per annum.
When this secondment ends, and if no further suitable externally funded research work is immediately available, you will revert to the College of Science Skilled Resource Pool, pending reassignment to suitably externally funded research work.”
As previously, at the end of this contract the Claimant has reverted to his substantive grade and salary of €52,702 and to the College of Science Skilled Resource Pool pending reassignment to suitably externally funded research work.
· There are currently 18 Research Funded staff on CID’s. Many of these are in the same situation as
· Staff, other than Researchers, in the University are on non-scale payments. Any concession of this claim will lead to a claim by these staff to be placed on a different pay structure with a pay scale.
· As this case has the potential to involve claims concerning a rate of pay for a body of workers it cannot be investigated by an Adjudicator under section 13 of the Industrial Relations Act.
· The University has a policy in relation to its Skilled Resources Pool and on the rules on salary applied to those in that pool.
· The policy on pay is approved by the Department of Education
· It is the practice across the University that when a staff member who is part of the Skill Resource Pool ceases working on a particular research contract that he/she moves back to his/her substantive post and salary until they are assigned another research contract.
· Two Technical Officer roles were advertised in late 2019 which have the potential for the Claimant to earn a higher salary. The Head of School discussed these with the Claimant. He did state he would consider applying for these roles but ultimately decided not to do so. The salary range for such a role is currently a maximum of €52,460 but also offers a career progression pathway to Senior Technical Officer earning a maximum current salary scale of €63, 027. Given his experience and qualifications the Claimant would be in a very strong candidate for such a post.
Findings and Conclusions:
The representative for the Respondent has cited section 13 (2) of the Industrial Relations Act, 1969, this section reads as follows:
13(2). Subject to the provisions of this section, where a trade dispute (other that a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part IV of the Principal Act, a party to the dispute may refer it to a rights commissioner.
In considering this argument I accept that the complaint is from one individual worker however any recommendation in this complaint has the potential to be utilised across a range of workers or as the Act states: a body of workers.
It is therefore, with regret, that I have to accept that I do not have jurisdiction to make a recommendation regarding this complaint.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As outlined above.
Dated: 19th July 2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Industrial Relations Act, 1969