Case Number: ADJ-00011977. Workplace Relations Commission

• Docket Number: ADJ-00011977
• Hearing Date: 21 February 2018
• Date: 01 May 2018
• Court: Workplace Relations Commission
• Parties: Worker v Health Service Provider
• Respondent: Health Service Provider

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00011977

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	Health Service Provider

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00015789-001	14/11/2017

Date of Adjudication Hearing: 21/02/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The claimant commenced employment in 2001 with the respondent as a Grade VII in IA and his manager was the then Internal Auditor Mr. JB. The Auditor retired in 2010 prior to which he undertook a comprehensive handover of his duties to the claimant – documentary confirmation of this was submitted in evidence. It was submitted that from the 1st.April 2010 the claimant has been acting as Internal Auditor for his geographical area – initially reporting to Mr. MF the national director and 11 months later to Mr. DL, General Manager for an entire region of the country. A circular on regularisation of acting positions issued in 2013 – the claimant asked his line manager Mr. DL to include him for regularisation but he indicated that Mr. MF was dealing with the matter nationally - it was submitted that the matter of dealing with the case nationally was contrary to the guidelines issued which required line managers to submit business cases for applications for regularisation under the circular. It was submitted that from this point Mr. MF had control over regularisation of all IA staff contrary to the respondent’s guidelines. It was submitted that the circular originated on foot of an acceptance that many employees had acted up without allowances or formal acting arrangements and it was designed to compensate staff who had taken on the role of higher grades who had exited under the incentivised schemes to reduce numbers in this employment .The motivation was to compensate those employees who accepted a lower pay grade during a time of national financial austerity in anticipation of a generous settlement/upgrade when better times returned . It was submitted that the claimant had been a union activist in the negotiations concerning the future structure of internal audit between 2010-2012 and that there had been many robust exchanges between union and management (including Mr. MF) at the time – part of the agreement to emerge was the creation of promotional posts – the claimant competed for same in 2012 but was unsuccessful. The claimant’s application for regularisation was rejected by Mr. MF on the basis that a nationally agreed restructuring process had taken place in 2012 and on the basis, that the claimant did not meet the criteria for regularisation. Convinced that he met the criteria, the claimant pursued the matter to the WRC culminating in a joint referral to the Labour Court – the Court recommended that the claimant utilize the Appeals Process to resolve his complaint. It was submitted that the Labour Court did not form the view that the claimant was excluded from the regularisation process due to the prior restructuring agreement on internal audit. The recommendation of the Court was submitted into evidence The claimant attended an appeals meeting ( 30thMarch 2016) with the Appeals Officer Mr. JD and his line manager Mr. DL who supported his application to be regularised as a Grade VIII. It was submitted that toward the end of the meeting Mr. JD mentioned that he would have a word with Mr. MF as they were working out of the same building. The claimant was immediately concerned and sought that Mr. JD revert to him with a right of reply but this did not happen. Mr. JD issued his recommendation on the 12th.April 2016 – stating that the claimant did not meet the criteria- without giving any reason for said conclusion. The claimant was directed by Mr. JD towards the Job Evaluation Scheme which does not encompass the claimant’s grade. When the claimant sought clarification on the rejection of the appeal by Mr. JD he was advised that his acting arrangement had not been “specifically and clearly requested by a sufficiently Senior Manager in the IA unit”. It was contended that this was factually incorrect and when Mr. JD was challenged it was submitted that he offered no rational for this finding. It was advanced that the acting arrangement had been approved and operated by the national director of IA and by the claimant’s regional manager Mr. DL. The claimant at this point was aware that his colleagues in similar situations had been regularised without recourse to appeal and he was feeling very much victimised. The claimant approached the national HR director who offered the appointment of an external party Mr. M to review the claimant’s case on the basis of terms of reference drawn up by the HR director and subsequently agreed with the claimant. The claimant met with Mr. M on the 4th.April 2017 – Mr. M undertook to have his report submitted to the HR Director by the 16th.April 2017. The claimant was emailed by the HR director’s office (Ms.AD) on the 10th.May 2017 confirming that Mr. M had reverted with a positive recommendation in favour of the claimant. The HR director’s general manager (Ms.AD) congratulated the claimant on the 11th.May 2017, confirmed he had been regularised, confirmed she had been given the authority to implement the recommendation and that all the terms of the 2013 circular would apply to him – ie. regularised with effect from the 1st.October 2013. Later that day Ms.AD emailed the claimant to say that she “had made a terrible error as I was thinking of another similar case that Mr .M had heard for us …I can confirm that Mr.KM is still considering and has yet to revert”. The claimant wrote to Mr. M and the HR director for clarification – Mr. M replied directly to him on the 26thJune 2017 stating “I submitted my report on the Adjudication Process as per the terms of the agreement for undertaking the appeal requested by you. My involvement in the process has therefore ceased. Matters relating to your appeal are between you and the respondent”. On the 24th.July, the claimant spoke with the HR director – she confirmed that MR.M had found in his favour but indicated that she “needed to hold off until the 15th.Sept.. at which point ‘everything would be sorted”. She agreed to forward a copy of Mr. M’s report to him. On...