ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00003375

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              11/03/2025 & 12/06/2025

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) 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 information relevant to the dispute.

Background:

The Worker has a dispute with his employer regarding his grade which he contends should be Catering Manager.

Summary of Workers Case:

The Worker commenced his employment with the employer in September 2009. Since then, he has worked in multiple roles, starting as a Catering Assistant and later progressing to the role of Chef. He was subsequently appointed to the role of Catering Officer Grade 2. However, he was never provided with a copy of his contract of employment. The Worker received a confirmation letter from HR at the time, stating that he was successful in his interview. The letter also provided salary details and confirmed his placement on the HSE Catering Officer Grade 2 pay scale.

The employer is a Section 38 service provider organisation governed by the HSE under Section 38 of the Health Act 2004. SIPTU has collective bargaining rights and is recognised by the employer for this purpose. However, this claim is specific to The Worker as an individual and does not relate to a broader group of workers. The grievance procedure was exhausted fully prior to submitting the claim to the WRC.

The employer historically employed a Catering Manager. However, when the person in this role retired, the vacancy was never refilled. Instead, the organisation hired two Catering Officers (Grade 2).

In 2018, the worker and his colleague, Ms. Z, were both appointed to this grade, sharing the responsibilities equally. However, in September 2023, Ms. Z retired, and since then, the worker has taken on the duties of both roles.

On April 27, 2023, worker submitted a formal letter to the employer requesting a grade change, citing HSE criteria and his expanded responsibilities.

The worker followed up on his grade change request by sending emails to the employer on June 19, September 21, and September 29, 2023, seeking an update. However, all of his correspondence was ignored by the employer.

The employer scheduled a meeting with the worker on October 17, 2023. During this meeting, the worker's grade revaluation request was rejected, with the employer citing the HSE recruitment embargo as the reason. This embargo has since been lifted.

A formal grievance was sent to the employer in October 24 2023.

The grievance meeting took place on November 22nd 2023. No resolution was reached at this meeting.

A second grievance meeting took place in January 17 2024. The management at the meeting stated that his request to have the grade changed was rejected but further explained that there would be a restructuring in the catering department in 2024 and alluded to the amalgamating of main kitchens.

On January 19, 2024, the worker submitted an appeal letter to the employer requesting a grade re-evaluation. In the letter, he emphasised how his role had expanded, particularly after taking on his former colleague’s duties following their retirement. However, the employer rejected the workers appeal.

On March 26, 2024, SIPTU wrote to the employer, stating that it was filing a complaint with the WRC to address the current funding allocation model and its failure to adequately compensate the worker for his increased workload. The letter also reiterated SIPTU's commitment to engaging in dialogue at any time to resolve the issue. However, the employer did not seek further engagement.

In April 2024, the employer objected to the investigation under Section 13 of the Industrial Relations Act.  On October 4, 2024, SIPTU sent correspondence to the employer, following up on the lack of response to a letter from the Worker to the Employer. The letter from SIPTU noted that the employer had neither contested the exhaustion of the grievance procedure nor outlined its objections to the trade dispute. SIPTU then informed the employer of its intention to file another complaint with the WRC. Additionally, SIPTU reached an agreement with the employer’s representative that no further WRC complaints would be refused, as the employer was bound by its obligations under the union agreement.

A list of HSE pay scales outlining Catering Officer Grade 2 and Catering Manager Grade was submitted, along with a copy of the catering manager’s job specification and terms and conditions.

We are seeking compensation for the delay in addressing the worker’s grievance and the initial refusal to hear the trade dispute. We are also seeking compensation for unfair treatment by the employer for breaches of the company’s internal grievance procedures. Additionally, we request that the worker be regraded from Catering Officer Grade 2 to the equivalent point on the Catering Manager grade scale as a fair and equitable resolution to this matter.

In support of the Worker’s claim under Section 13 of the Industrial Relations Act 1969, we submit that the employer materially breached its own Grievance and Disciplinary Procedures in handling his grievance. Especially given the employer’s refusal to engage with the trade dispute and its failure to adhere to procedural fairness. The Procedures explicitly mandate written documentation at every formal stage of the grievance process, yet no minutes were taken during the grievance meetings on November 22, 2023 and January 17, 2024, and no written outcome letters were issued following these hearings, depriving the worker of clarity on the rationale for decisions and undermining his ability to challenge the employer’s reasoning. Additionally, the employer unnecessarily prolonged the grievance process, with the first meeting occurring 28 days after the grievance submission and the final rejection issued 87 days after the grievance was raised, without any justification for the delays. The Procedures emphasise ‘resolving grievances promptly’, but the prolonged timeline exacerbated the worker’s stress and financial detriment, as he performed dual roles without appropriate pay. Furthermore, the employer refusal to engage with the trade dispute initially, objecting to the WRC investigation under Section 13 and ignoring SIPTU’s correspondence, contradicting the Procedures’ intent to ensure grievances are resolved and violating the worker’s right to make a third party referral as set out in the procedure. Lastly, the worker’s grievance concerns his terms and conditions of employment, specifically grade reclassification, which fall within the scope of the Procedures, and the employer’s failure to address this fairly, including withholding his contract and ignoring repeated requests for a grade review, further breaches the obligation to maintain good employee relations.

The case law from LCR22225 and LCR22648 underscores the importance of aligning an employee’s responsibilities with their corresponding pay grade, particularly when their duties have significantly expanded or changed. In LCR22225, the Labour Court emphasised the need for regrading when a worker’s duties had evolved beyond the scope of their initial role, resulting in a pay discrepancy compared to those they manage. Similarly, LCR22648 highlights the significance of adhering to collective agreements and ensuring that employees are not excluded from their terms when their roles align with the agreed-upon pay scale. Just as the claimant in LCR22648 was entitled to the appropriate grade based on their duties, the Worker’s expanded responsibilities, particularly since 2023, strongly support the argument for regrading to Catering Manager, with a corresponding retroactive pay adjustment. These cases illustrate the principle that when an employee’s duties significantly expand, as in the Worker’s case, their pay grade and classification should be adjusted to reflect these changes in accordance with fair pay practices and collective agreements.

CONCLUSION

We are seeking a fair resolution for the Worker, by ensuring his grade is adjusted to reflect his expanded responsibilities, aligning with the Catering Manager role and corresponding pay scale. We also seek compensation for the employer’s failure to follow grievance procedures, including delays and lack of engagement in addressing the dispute.

Summary of Employer’s Case:

The Employer initially made a submission and then following the hearing held on 11/03/2025, a number of further salient points were submitted.  Both submissions are summarised as follows:

Historical Background to the Role within the Respondent

The Respondent wishes to confirm the historical background of the role in question and refute the Complainants assertion that there has been a catering manager role in the organization before. There has never been a catering manager role within the Respondents organization. The highest grade within the catering department in this organization has been a Catering Officer 1, which was Mrs Z predecessor Mr H. Additionally, within his role as Catering Officer 1, he had a remit which went across both city and county. When Mr H retired, Ms Z was offered a Catering Officer 2 role in 2015, due to reduced remit. The Complainant was hired on a specified purpose contract to cover a period of planned absence in 2018 by Ms Z. Ms Z, on her return outlined that due to ongoing health issues there could be more absence and that she would also be taking early retirement. Due to this, the Respondent did not revert the Claimant back to his original contract and was offered the Catering Officer II on a permanent basis. At no point did the Respondent ever hire a Catering Manager.

Further to the complaint form, as per the Complainants submission, it is alleged that the Respondent failed to address the Complainants grievance in a timely manner, breaches of the internal grievance procedures and additionally it is requested that the worker be regraded as a Catering Manager from his current role as Catering Officer 2.

Prior to Ms. Z’s retirement, the Claimant spoke with his line manager Ms. O requesting an increase in salary. The Claimant was informed that there would be no increase, as a Section 38 organization the Respondent is bound to the public sector pay grades or also known as the consolidated pay scales.

The Claimant raised a grievance regarding the regrading of his role. The Respondent engaged with the Complainant on this grievance a number of times both via email and verbally with his line manager Ms. O.

The Claimant sent an email dated 24th October 2023 requesting a meeting with his SIPTU representative to attend.

A meeting took place on the 22nd November 2023, and at this meeting, the Complainants request for an upgrade and reasons were heard. The Respondent agreed to review and revert to the Complainant.

A further meeting with the Claimant and SIPTU representative was held 17th Jan 2024 and the Respondent confirmed that his post was graded correctly. At this meeting the Respondent confirmed that the post was aligned with the consolidated pay scales. The Respondent also confirmed that they would be conducting a review of the catering operations overall in the coming summer.

The Claimant sent an appeal email to the Chief Executive dated 19th Jan 2024 requesting that his grade would be re-evaluated. A meeting was held on foot of this email.

The Respondent received a letter from SIPTU stating their intention to file a complaint with the WRC.

In July 2024, the Respondent received the results of the review of the catering operations which did not highlight the need for any additional resources, nor a regrading of any current roles.

The Respondent then received the instant claim via the Commission on 4 November 2024.

Respondent’s Position - Industrial Relations claim:

It is the Respondent’s position that a full and fair Grievance process took place in line with fair procedures and the Respondents Policy.

The role of an Adjudication Officer in an IR referral is to: “investigate any trade dispute referred to him, and shall, unless before doing so the dispute is settled, make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute” (Section 13).

The role of the Adjudication Officer within an Industrial Relations hearing is to assess whether the process conformed to the principles of natural justice and the general principles set out in the SI 146 of 2000. Respectfully, it is not the function of the Adjudication Officer or Court to form an opinion as to whether the Respondent was objectively correct in their conclusions; rather its role is to establish if the Respondent acted fairly in its dealings with the Complainant.

In the case of Euro Car Parts Ireland Limited v A Worker (LCR22092), The Court decided that “In relation to the process followed and the report issued, the Worker could not point to any failure by the Employer to follow the Company procedures, rather his issue appears to be that he disagrees with the findings of the Investigator. The Court finds that the Worker’s complaint was investigated in a fair manner and on that basis the appeal must fail”.

This position was recently restated by the Workplace Relations Commission in the Recommendation ADJ 33231. The Respondent rejects any and all allegations made by the Complainant in respect of the process and its appeal.

The Complainant is alleging failure to adhere to grievance procedure with the grievance the Complainant raised regarding the grading of his role and in addition to that requesting that the recommendation of the Adjudication Officer outlines that the complainant’s role be regraded. This is directly requesting the Adjudication Officer to provide a recommendation on whether the Respondent was correct in their conclusions of the grievance raised by the Complainant, rather than establishing if the Respondent acted fairly in its dealings with the Complainant. Due to this, it is the Respondents position that making a recommendation on whether the role should be regraded or not, is outside the scope of the legislation.

The Claimant is graded in line with public sector pay grades. The organisation is a Section 38 organisation and therefore cannot unilaterally change employees’ grades without utilising the HSE approved business case or job evaluation process.

Additionally, if there was a need for an additional position of Catering Manager as requested by the Claimant, as per the Respondents recruitment policy and HSE policies, the role would need to be approved by the HSE and additionally an open recruitment would need to occur.

The Respondent conducted a formal review of the catering operations in July 2024. This review did not outline the need for this grade to be reassessed to a higher grade.

Additionally, the role of Catering Manager, is two grades up from the Claimants current role of Catering Officer II. This would be an entirely different role to the Claimants current role, with managerial duties and responsibilities.

The Respondent would highlight LCR 22412 and note that it is not within the Respondent’s ambit to move employees across different grades.

It is the Respondents position that these claims are entirely without merit. The request from the Claimant to be regraded to Catering Manager, is without justification as the Claimant does not do Catering Manager duties in any way and the role has never existed in the Respondents organisation.

Conclusions:

While I note the point made by the Employer’s Representative that it is not the function of the Adjudication Officer or Court to form an opinion as to whether the Respondent was objectively correct in their conclusions; rather its role is to establish if the Respondent acted fairly in its dealings with the Complainant, it is surely a function of an Adjudication Officer to examine the merits of a dispute, as specifically referred to in Section 13 of the Act.

I have carefully considered the submissions made by both parties and am conscious of the fact that there are some limitations to what can be recommended in the resolution of this dispute, not least the fact that the employer is a Section 38 service provider organisation.

I accept the Employer’s point that in the organisation, there is not a Catering Manager position and has never been a Catering Manager position, and that Ms Z’s predecessor was Catering Officer Grade I.  The duties then were changed somewhat and Ms Z was appointed to Grade II.   The Worker in this case replaced Ms Z while she was on long term sick leave and was then appointed to Grade II permanently when she retired. Having reviewed the communications from the Worker to the Employer, during 2023 and 2024 there is evidence that he has taken on more duties and was involved with training and Quality and Safety Committees.   It is indicative of his frustration that he indicated in communications with the Employer on 20 October 2023 that “given the recent expansion of my workload I am no longer in a position to attend IDDSI and Quality Safety Committees” and on 26 September 2024, when the then CEO rejected his appeal “since then I have been working under protest”.

I note the lengthy time taken to deal with the Worker’s dispute, and the Employer did take some considerable time to finalise the matter through procedures, as well as being inconsistent in disagreeing and then agreeing a referral under the Act.  However, the main issue at the core of this dispute is grading.  I note the July 2024 report was not shared with SIPTU and therefore there is no indication as to whether a job evaluation exercise was conducted to ascertain the correct grade for the work the Worker performs.  

Recognising that there are limitations as the Employer is a Section 38 service provider, there should still be some scope to conduct an exercise to ascertain the Worker’s correct grade, even if not formally through the HSE structures.  To bring some finality to this dispute, I recommend the Employer conducts a local job evaluation exercise on an individual basis for the Worker in this case.  The matter of funding and if an advertisement has to issue would be a separate issue for the Employer in the event that an evaluation results in a higher grade being warranted.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

To bring some finality to this dispute, I recommend the Employer conducts a local job evaluation exercise on an individual basis for the Worker in this case. 

Dated:   01/08/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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