ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003412
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 28/09/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41(4) of the Workplace Relations Act 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.
Attendance at Hearing:
A Local Authority Engineer
A Local Authority
Complainant’s Submission and Presentation:
The complainant is a Health & Safety Officer, grade 6 and is employed by a large local authority.
She says that she is incorrectly graded for the reasons set out below.
She says therefore that the failure to pay her at that higher level means that the difference between that higher salary and her current is equivalent to illegal deductions from her salary.
The rate she claims she should be on since was established in 2010 as the appropriate rate for her duties.
A Circular Letter (the device by which ‘parent’ Government departments communicate with agencies under their authority) was issued by the Department of the Environment on 23rd April 2010, Circular LG (P) 05/10.
The Complainant meets the qualifying criteria set out in the circular and says that the rate of pay defined there applies to her.
The Employer has refused to apply the terms of the circular to the Complainant. She is seeking a review of her current salary status in line with the circular and is further seeking arrears of wages owed to her in so far as the Adjudicator has jurisdiction to award. The circular applies to all existing posts and vacant posts.
In support of the her case, the Complainant relies on a decision of the Labour Court; Appeal Decision number AD1313 where it was held by the Labour Court that there was no justifiable basis why a Health & Safety Officer in another local authority had not been remunerated at the rate applicable to a Senior Executive Engineer since 2010 and the Court affirmed the previous recommendation of the Rights Commissioner.
The complainant says the facts of her case are almost identical to that considered by the Labour Court and that the correct legal position is that she should be employed at the grade of Senior Executive Engineer and paid at a rate appropriate to her grade.
The complainant also relied on a decision by a Rights Commissioner in a similar case but in a different local authority where a claimant was successful in her case for upgrading.
Respondent’s Submission and Presentation:
The respondent says that the structure outlined in the Circular letter have no application to its situation. On account of its size it requires a different operational and management structure which pre-dated the circular letter in question.
The respondent says that a number of previous complaints similar to the current case have been the subject of decisions by Rights Commissioners which rejected them (although one is under appeal to the EAT). These were complaints under the Payment of Wages Act and the Industrial Relations Act.
The respondent submits that in order to succeed under the Payment of Wages Act it is necessary to establish a contractual entitlement to the monies claimed and then establish that the employer has made an illegal deduction from them.
There have been previous complaints to Rights Commissioners on this issue. In one r-147218-pw, the Commissioner concluded;
It could also be interpreted from the evidence as adduced at the hearing that the claimant is more seeking a re-grading of his position as opposed to a direct allegation of breach of the Payment of Wages Act.
It is my opinion that the claimant is being remunerated in accordance with his contract and paid the appropriate rate of pay and as such therefore his complaint under the Payment of Wages Act must fall.
Findings and Conclusions
Much of the material in the submissions turned on issues quite outside my jurisdiction in the case.
The appropriate grading for the complainant is not a matter that arises under the Payment of Wages Act, nor is whether the respondent has fully complied with the Circular letter, nor indeed the status of those letters. Several of the cases referred to by both sides were made under the Industrial Relations Act which is the appropriate vehicle for the more generalised aspects of this case.
They would only be relevant of a case could be made that they had some form of direct effect on the respondent which is not the case. The requirement is that local authorities are required to ‘have regard to’ the Circular Letter; hardly, on its own, imposing an obligation.
Essentially, the complainant’s submission is that failure to pay her at the level she submits is the appropriate one is an unlawful deduction from her wages.
The act defines wages (somewhat loosely) as follows;
‘wage, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment..
While the complainant clearly believes that the higher grade monies are ‘payable’ to her this is not its ordinary meaning. ‘Payable’ means ‘requiring to be paid’, in this case under a contract of employment. It does not cover a feeling of entitlement to be paid, or something that would become payable if agreement was reached to apply it to her post.
The complainant placed significant reliance on Rights Commissioner recommendation, r-138850-pw-13/eh.
In that case the Commissioner reiterated in the first sentence of his findings the point made by the respondent in the current case;
I find that that in order to succeed under the Payment of Wages Act it is necessary to establish a contractual entitlement to the monies claimed and then establish that the employer has made an illegal deduction from them.
Critically, in that case the Labour Court had already issued a decision which was before the Right Commissioner to the effect that the rate claimed was the appropriate rate for her (or more accurately) the Court could;
’see no justifiable basis as to why the claimant has not been remunerated at [the rate claimed]
The facts in this case are entirely different. There has been no finding that the current complainant has been wrongly graded or that she should be re-graded. It is reasonable to assume that if the case made by the respondent about its particular structure was before the Labour Court it would, in line with its normal practise consider the matter on the specific facts that apply in that situation.
In r-138850-pw-13/eh the Rights Commissioner concluded that the issue was the correct application of the pay scale for the claimant following the decision of the Labour Court that it had
’affirmed that the rate applicable to Senior Executive Engineer [the higher rate] was the correct one.’
To seek to export the principles which are very specific to that situation to the current claim would be without any foundation, or indeed logic. That decision turned on the Rights Commissioner finding that the correct rate for the claimant’s job had been established by virtue of the decision of the Labour court (and a previous decision in an earlier Rights Commissioner hearing).
In the circumstances he could properly find that she had not been paid at the appropriate, or perhaps what might be described as the de facto rate.
As noted, in this case the respondent gave evidence that it operates a very different structure which it says puts it beyond the obligations contained in the circular letter referred to above.
Whether it is entitled to do so is another matter between it and the relevant Department or its employees or their unions but not one within my jurisdiction.
The respondent also points out that in r-138850-pw-13/eh the Council involved had failed to appoint the lead Health and Safety person to the grade of Senior Executive Engineer but that in its (the respondent’s) case the Health and Safety lead is at a level higher than that.
I have dealt with that case at some length on account of the reliance placed on it by the complainant.
However, I note also the two Rights Commissioner decisions referred to by the Respondent.
In the first case referred to, r-147218-pw, (which involved the current respondent) the Commissioner also took into account the fact that the respondent operated a different structure to other local authorities.
This decision is under appeal to the EAT but in my respectful opinion this is a good statement of the position.
In a second case (under the Industrial Relations Act) the Commissioner recommended that the issues should be returned to the industrial relations machinery at national level.
For the complainant in this case to succeed she would first need to establish (and not merely assert) that she is in the wrong grade through some HR or industrial relations process other than a complaint under the Payment of Wages Act as the claimant in r-138850-pw-13/eh had done.
She cannot succeed under this Act on the basis of the Adjudicator first being asked to determine what her proper grading is and then to reach a conclusion about unlawful deductions as part of the same process.
She must come to the hearing on the same, or similar basis to the complainant in r-138850-pw-13/eh which she has not done. She must establish initially a clear contractual entitlement to the level of payment from which she says the deductions are being made. She has not done so.
This has been a most fanciful use of the Payment of Wages Act but one that is misconceived. It cannot succeed on these facts.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out above I do not uphold complaint CA-00005011-001 and the complaint is dismissed.
Dated: 12th December 2016