ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020930
Health Service Provider
Complaint 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: 18/06/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 41 of the Workplace Relations Act, 2015 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 Complainant has been employed as a Staff Officer since 2004. The Complainant alleges that the Respondent has not paid her or paid her less than the amount due to her since September 2013.
Summary of Complainant’s Case:
The Complainant submits as follows: The Complainant has been employed as a Staff Officer since 2004. The Complainant is a Grade V Staff Officer working in the Business Support Unit (BSU).
From September 2013 in addition to the Complainant’s roles and responsibilities she continued to undertake additional duties and responsibilities as requested to do so and was carrying out the role of a Grade VI Officer within the service.
In or around October 2014 after requests to undertake further additional duties the Complainant contacted her Trade Union. From around December 2014, there was much correspondence between the Union and the Respondent requesting the Complainant’s Grade V role to be upgraded to a Grade VI, as the Union were satisfied that the Complainant was performing a Grade VI role.
The Complainant outlined in detail the process that ensued.
A year after the Union's request to regularize the Complainant’s role, Mr A and Mr B of local management approved a Business Case for the Regularisation of Acting Posts for the Complainant's upgrade, dated 15th August 2016.
To the disappointment of the Complainant, who had a real expectation that her upgrade to Grade VI was imminent, this Business Case was never processed and so the Complainant invoked the formal grievance process.
The Complainant submitted a formal grievance on 7th September 2016, which culminated in a WRC hearing on the 28th August 2018 under Section 13 of the Industrial Relations Act, 1969.
The recommendation issued states:
"I recommend that the Complainant write to the Respondent within three weeks of the date of this decision and identify, in writing to the Respondent, the Comparators/Job Roles she states she should be granted parity with at Grade 6. I recommend that the Respondent then conclude a job comparison/full job evaluation by an Independent job Evaluator of the jobs involved and make a conclusion on the merit of the Complainant’s claim. This evaluation and conclusion should be reached within two months of the job roles being identified by the Complainant and the report provided to the Complainant and her Representative. If the Complainants case is proved to succeed, then the matter of the backdating of pay should be the subject of local negotiation between the parties but the Complainant, if successful in her Grade upgrade claim, has the option at any future time to refer the matter of back pay to the WRC for separate adjudication. "
The Complainant wrote to Mr B of management in a letter dated 30th October 2018 setting out what was requested. The Respondent never acted on the Recommendation.
While the matter was ongoing, the Complainant completed an internal job evaluation application in January 2017. The Complainant was called for an interview with the Internal Job Evaluation Team in January 2019 and following this process, the Complainant received a letter setting out that her role was upgraded on the 12th February 2019. This is conclusive recognition that the Complainant was entitled to an upgrade and has been since January 2014. At a meeting with the Complainant on the 30th April 2019, Mr B proposed backdating the Complainant’s new pay to September 2016. This was followed up by a letter to Mr B dated 1st May 2019, in which the Complainant outlined what had been discussed at the meeting. Mr B's reply dated 9th May 2019, confirms his offer to back date the commencement date of the Complainant’s Grade VI role to 2016. The Complainant asserts that this is unsatisfactory and that she is entitled to her pay being back dated to January 2014.
Since 2014, the Complainant has diligently and with commitment performed her Grade VI duties whilst also taking responsibility for additional work, at a very high standard, as requested and acknowledged by Management. The Complainant has been effectively acting as a Grade VI Officer since 2014, without an upgrade from her Grade V position, whilst similar Grade V colleagues in other regions were upgraded to a Grade VI. The Complainant has clearly not been treated equally to her colleagues in this instance.
Throughout this period, the Complainant carried out her duties along with additional responsibilities to the best of her ability in the context of the BSU being left under-resourced and understaffed for long periods of time.
The Complainant’s role has now been upgraded since February 2019 to reflect the role she has occupied and for more than 5 years, yet to date this has not been processed. The Complainant is seeking back payment from January 2014 to date. The Complainant has chosen January 2014 rather than September 2013 as her starting point, as she has been performing the duties of a Grade VI officer on a continuous basis since that date, without receiving an upgrade or any additional pay.
For some reason, unknown to the Complainant, the Respondent has plucked 2016 as the date from which they are willing to back date the Complainant upgrade to, whereas the Complainant has shown that she has performed a Grade VI role since 2014. The Respondent has failed to show why they have chosen 2016. The Contract received by the Complainant has a commencement date of January 2019, when in fact this should be 2014 and by Mr B’s own acceptance -2016. It seems that none of the various parties are communicating on the Complainant’s matter and the Complainant is the victim of this miscommunication.
The Complainant’s solicitor has furnished the Respondent with a breakdown of losses and provided the Respondent with an opportunity to dispute same.
The Complainant has calculated her losses from January 2014 to June 2019 at €16,781.50 Gross and €8,993.46 Net.
The Complainant stated that this matter has more implications than just pay, for instance colleagues who got an upgrade 4 years ago can now apply for a further upgrade at this point.
Summary of Respondent’s Case:
Background: The Complainant was a substantive Grade V. She has been seeking an upgrade to a higher Grade VI in line with colleagues in the West region who received an upgrade through the earlier evaluation process. The Complainant has been through a Grievance process including a Stage 3 to have her position upgraded at a Grade VI. The Grievance did not recommend the move to a substantive Grade VI. This outcome was appealed to the WRC and heard on the 28th August 2018. The recommendation issued included an independent job evaluation and local consultation following the evaluation.
The job evaluation was through the agreed Respondent’s Job Evaluation Process of September 2016 and was heard on the 21st January 2019.
The job evaluation process approved a regrading to the position to Grade VI and, as the Complainant had been in the position for more than 4 years, as agreed by the process to be hers by designation. As per agreement this was effective from the 21st January 2019 the date of the hearing. Efforts were made by the management to have the position regularised as far back as 2015- but the business case was not accepted by the Director at the national level. The Complaint The Complainant seeks to be regularised in her employment to the grade of Grade VI to be effective from 22nd December 2014. The Complainant processed a grievance to that effect through the Employer Grievance Procedure but was unsuccessful in having her grievance upheld. The Complaint appealed the outcome to the WRC. The Complainant has now submitted an individual employee complaint under Section 6 of the Payment of Wages Act, 1991. The Employer Response to the Complaint The Respondent exhibited Grievance Process which outlines the reasons why the upgrading could not be approved and the letter of the Director at the national level. The Respondent also drew the hearing’s attention to the previous WRC recommendation, which includes an independent Evaluation Process and local engagement. The Evaluation Process is part of the collective bargaining framework agreed between national Respondent’s management and staff representatives that exists around the evaluation process. The Complainant was not part of the Evaluation Process of 2008 that led to the certain staff having their posts evaluated prior to 2016 new process. The question of evaluation is predetermined by the collective bargaining engagement that has taken place on the matter. Management at local level did look in 2015 to have the position of the Complainant regularised as a Grade VI but this was not accepted by Director at national level. Management did make an initial offer to the Complainant to backdate the initiated date to September 2016 with retrospection. This was rejected by the Complainant. However, since this offer was made management are no longer in a position to pursue this offer as there are other staff who have been through the same evaluation process and have looked for similar backdating. Therefore, concession of the claim/complaint resolution sought would have foreseeable significant knock on effects. Summary The Complainant was treated equally to others in consideration of her application for the Evaluation Process. In order to address the delay in the process local management have sought to have the date of regarding and backdated to September 2016 however management are now no longer in a position to make this offer as it is likely to create a precedent both locally and across the service. The substantive question posed in this complaint is properly and already determined by Evaluation Process, collective engagement, at national Respondent’s and Trade Union level. There is a substantial knock on effect to concession of the remedy sought. There is also a concern that a letter received from Ms Browne's legal representative dated the 12th June 2019 may prejudice the hearing . Conclusion The Employer views the complaint as a misconceived individual complaint and consequentially asks that it is dismissed.
Findings and Conclusions:
The first matter I must decide is if I have jurisdiction to hear this complaint.
In making my decision, I must take account of both the relevant legislation and the legal precedents in this area.
The Complainant’s claim under the Payment of Wages Act, as received by the WRC on 8th April 2019 relates to wages allegedly not received of the value of €28,542 from 13th September 2013 onwards.
Having considered the written and oral evidence that has been presented to me, I am satisfied that this matter was referred under the Payment of Wages Act, the provisions and scope of which is limited by the clear definitions and purpose as set out in the Act. Accordingly, I must confine my adjudication to the requirements of that Act. I will note that a plethora of other matters what would appear to be of a contractual or industrial relations nature were opened to me in submissions on the day of the hearing by the parties. I am satisfied that these additional matters are not before me in relation to this complaint under this Act.
The Complainant referred her claim to the WRC on 8th April 2019.
Section 41 of the Workplace Relations Act, 2015 stipulates as follows:
(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
In HSE v Mc Dermott  IEHC 331 the High Court considered in detail the wording of the time limits in payment of wages case and at paragraphs 14 and 15 stated:
“…the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.
For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.”
In its judgment the High Court provided an example of the difference that the framing of a complaint can make to whether the claim is outside of the time limit or not.
“It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”
In light of the findings of Hogan J in HSE v Mc Dermott, I have considered how the complaint was framed in this case. In Mc Dermott, the Complainant was permitted to succeed in his claim for a deduction in pay due to his complaint being lodged on 16th June 2011 with a reference period of January 2011- June 2011. The facts of that case are distinguished from the herein case.
In the complaint referral form received by the WRC on 8th April 2019, the Complainant states that she should have received payment on 13th September 2013. However, it is clear from the Complainant’s submission, that this complaint relates to the period from 13th September 2013 (or January 2014 as per the submission presented at the hearing) onwards and that the Complainant is seeking full retrospection for that period.
This places the complaint well outside the acceptable limits of 6 months of contravention or of 12 months by extension through reasonable cause. I find, therefore, that the complaint is not framed in a manner which allows me jurisdiction in the case.
Taking all of the above into account, I find that the herein complaint has been lodged outside the time limits prescribed by Section 41 of the Workplace Relations Act 2015 and I find that I do not have jurisdiction to hear it.
Section 41 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.
I find that I do not have the jurisdiction to hear this case.
Dated:7th August 2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Payment of Wages Act- properly payable- evaluation of post-time limit