ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037022
Parties:
| Complainant | Respondent |
Parties | Mahon Finlay | Revenue Commissioners Corporate Services Division |
Representatives | Self | Cathal McGreal BL/ Noreen Collins Solicitor |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00048355-001 | 27/01/2022 |
Date of Adjudication Hearing: 05/12/2022
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
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.
Background:
The Complainant commenced employment as a clerical officer in October 2017. He worked in the enforcement area. In line with incremental progression his salary increased and was on €27,878.21 with an enforcement allowance of €6577.25 when promoted. That allowance related to flexibility about availability to work and to be scheduled outside normal office hours having regard to the requirements of the role.
On the 9th of September 2019 the Complainant was promoted to the position of executive officer. The first point of the scale was €30,127; however, since he was in receipt of an allowance, he was placed on point 4 of the executive officer scale which meant payment of €34,455.46.
The crux of this dispute relates to the classification of that flexibility payment on promotion. Was it incorporated into the basic salary so that his basic salary was €34,455.46 or was the payment a separate and distinct allowance not incorporated into basic salary; that reflected the original purpose of the payment which was a payment relating to flexibility about times of work. While the Complainant could benefit from having been paid the allowance when promtoed; he couldn’t benefit twice for the same allowance. The Complainant believes that this allowance is different to the allowance he was entitled to for working shift in Customs and therefore no adjustment should have occurred.
A Revenue circular 08/2019 headed ‘Revised arrangements applying to starting pay’ at 2.4 states: An officer may not benefit twice from the same allowance.
At 2.1 of the circular, it states: An officer who holds an allowance in the nature of pay at the time of promotion to a higher grade, including an allowance deriving from service as a Private Secretary, will enter the scale for the higher post at the more favourable of the following:
(i) Normal starting pay rules based on the officer’s existing pay, exclusive of the allowance; or (ii) Where the allowance has been held for at least one year, officer’s existing pay plus the allowance. In the case of the Complainant (ii) was more favourable.
On the 14th of December 2020 the Complainant was placed on point 5 of the executive officer scale moving him to a salary of €37,436.
On or about 28th of December 2020 the Complainant was successful in applying for a Customs position that required him to work shift that attracted a premium of 25%.
The Respondent stated that at this time it placed him erroneously on point 3 of the executive officer scale attracting a basic salary of €33,689 and a 25% a shift premium. What should have happened was a return to what his notional pay should have been when originally appointed to the executive officer grade excluding the enforcement flexibility post allowance so that he would not benefit twice from the same allowance.
This error was discovered, and payroll adjusted his salary to reflect the policy of not benefiting from the two allowances. His gross salary was reduced from €42,111.25 to €40,846.25.
The Complainant stated that this should not have occurred as it was not the same allowance. The Respondent maintains that the Complainant in error had benefited from the payment of the same type of allowances and in fact was overpaid. Any deduction made was lawfully made.
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Preliminary Matter
The cognisable period for the complaint is the 6-month period 28th of July 2021 to the 27th of January 2022.
Summary of Complainant’s Case:
The Complainant maintained that an allowance that carried over from his time working in the enforcement unit was essentially different from an allowance he received when he moved to customs. Based on the policy that an employee should not benefit twice from the same allowance, the Respondent made an unlawful deduction from his wages as it was not the same allowance paid twice. |
Summary of Respondent’s Case:
The Complainant was overpaid in error. The payments made were not properly due to him. No unlawful deduction in these circumstances arises. |
Findings and Conclusions:
Section 5(6) of the Payment of Wages Act 1991 as amended states: (6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, The first question that arises was the payment properly payable to the employee. Both parties rely on the circular to argue for their respective position. The Complainant argued as the enforcement allowance is not the same allowance as that due to him in the Customs role, it was properly payable to him and should not have been deducted from his salary. The Respondent argued that one word cannot determine what the parties meant about benefiting twice from the same allowance. The policy to accommodate the payment of an allowance on promotion was done based on the principle that an employee should not be worse off arising from the promotion. However, the meaning of the policy can only make sense by looking at the entire document and must be interpreted purposively rather than selecting the most favourable interpretation. The parties have presented their understanding of what same meant in the context of the circular. There is variation in the work patterns required between the two different work sections; however, they both relate to working outside standard office hours and reflect the nature of the work that the respective areas are engaged in. The payments while not for the exact same work patterns and obligations are paid for being flexible regarding working time.
I note Joyce v The Board of Management of Colaiste Iognaid [2015] IEHC 809 stated that:
“The first question to be addressed in considering this application is whether or not there has been compliance by the chairperson with the procedures prescribed by Circular 60/2009. Counsel for the defendant has submitted that in construing these procedures, the Court should not do so as though the circular was a statute and should look at the procedures in a flexible and purposive way and I agree with this submission. To apply standards of statutory interpretation to such circulars might well make them unworkable.”
I am satisfied based on the review of the relevant documents (Agreement between Revenue Commissioners and the Civil and Public Service Union CPSU in respective of Allowanced posts in Revenue dated 4th of April 2007; Draft Agreement with Public Service Executive Union PSEU on allowanced posts in Revenue drafted in 2007 and letter from Respondent to Staff dated 19th of July 2017 concerning appointment of clerical officers to Revenue Enforcement); that the enforcement payment is properly classed as flexibility payments for attendance in lieu of overtime and a shift payment and therefore the enforcement allowance and customs allowance are the same type of payments while the actual monetary value differs for each, they are properly classed as flexibility payments relating to attendance.
Based on a purposive review of the policy and the various clarifications and correspondence on the payment of allowances; I am satisfied based on the facts of this case that while the monetary payments vary, the allowances are correctly classed as the same type of allowance. Based on this analysis I determine that the Complainant was in receipt of an overpayment not properly payable to him.
I note section 5(5) of the Act states:
(5) Nothing in this section applies to— (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where— (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of— (I) any overpayment of wages, or I am satisfied that the correct deduction was made by the employer based on the following evidence submitted by the employer: Period 28 July 2021 to 27 January 2022 (As PAID) Calculation based on salary being reduced back (to exclude CO enforcement allowance so he returned to Notional pay) as he had started a new allowanced post. 28/07/2021 to 08/09/2021 = Step 2, €32,677 + 25% allowance €8,169.25 = €40,846.25 / 26.09 x 43 days = €4,808.60 09/09/2021 (Inc) to 30/09/2021 = Step 3, €33,689 + 25% allowance €8,422.25 = €42,111.25 / 26.09 = 1,793.60 x 22 days = 2,536.41 01/10/2021 (LRA) to 27/01/2022 = Step 3, €34,189 + 25% allowance €8,547.25 = €42,736.25 / 26.09 x 119 days = €13,923.27 Total €21,268.28
Period 28 July 2021 to 27 January 2022 IF he had retained his salary (inclusive of the CO Enforcement allowance) and also received EO 25% Shift allowance for the above period (so would also have received his annual increments): 28/07/2021 to 30/09/2021 = Step 5, €37,436.00 + 25% allowance €9,359 = €46,795 / 26.09 = 1,793.60 x 65 days = 8,327.42 01/10/2021 (LRA) to 13/12/2021 = Step 5, €37,936 + 25% allowance €9,484 = €47,420 / 26.09 x 74 days = €9,607.07 14/12/2021 (Inc) to 27/01/2022 = Step 6, €39,648 + 25% allowance €9,912 = €49,560 / 26.09 x 45 days = €6,105.78 Total €24,040.27 As no unlawful deduction has been made by the Respondent, I determine that the complaint is not well founded. |
Decision:
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 am satisfied based on the review of the relevant documents (Agreement between Revenue Commissioners and the Civil and Public Service Union CPSU in respective of Allowanced posts in Revenue dated 4th of April 2007; Draft Agreement with Public Service Executive Union PSEU on allowanced posts in Revenue drafted in 2007 and letter from Respondent to Staff dated 19th of July 2017 concerning appointment of clerical officers to Revenue Enforcement); that the enforcement payment is properly classed as flexibility payments for attendance in lieu of overtime and a shift payment and therefore the enforcement allowance and customs allowance are the same type of payments while the actual monetary value differs for each, they are properly classed as flexibility payments relating to attendance.
Based on a purposive review of the policy and the various clarifications and correspondence on the payment of allowances; I am satisfied based on the facts of this case that while the monetary payments vary, the allowances are correctly classed as the same type of allowance. Based on this analysis I determine that the Complainant was in receipt of an overpayment not properly payable to him.
I note section 5(5) of the Act states:
(5) Nothing in this section applies to— (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where— (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of— (I) any overpayment of wages, or
As no unlawful deduction has been made by the Respondent, I determine that the complaint is not well founded. |
Dated: 05/01/2023
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Same Allowance- Policy -Circulars. |