ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054783

Parties:

Complaint:

Date of Adjudication Hearing:  27/02/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act 1991following 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 matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Complainant contends that due to circumstances involving a delay, he was incorrectly paid when he was promoted to the grade of E.O.

Summary of Complainant’s Case:

In his written and oral submissions, the Complainant outlined the history behind his claim that he has been underpaid by the Respondent. He referred to Civil Service Circulars 34/1977, 20/2018, 07/2019, 08/2019, 17/2019, 22/2019, 04/2020 and 12/2020.  He was promoted to the grade of Executive Officer on 19/03/2019 (Quarter 1 2019) following a Garda vetting process which took 7 months.  He argues that he should have been given the grade in Quarter 4 2018 which would have allowed him to progress to point 2 of the scale on 28/04/2019, instead of which he was placed on point 1 of the scale on 19/03/2019.  He referred to Circular 34/1977 which provides that a promotion may be deferred in the event of an ongoing series of pay revisions.

In response to the Respondent’s claim that his complaint is out of time, he submits that he was acting HEO from 20/09/2021 to 20/05/2022, and as he received a payment for back pay on 23/05/2024, his complaint should be considered.   

Summary of Respondent’s Case:

It is noted that the Complainant in his Complaint Form has described the Respondent as “Garda Civilian”. Having regard to the provisions of the Garda Síochána Act 2005 (as amended) and, in particular, section 19 thereof, which provides for the appointment of civilian staff by the Garda Commissioner, it is submitted that the Commissioner of An Garda Síochána is the correct Respondent and the Respondent will consent to such an amendment to the description of the Respondent being made by the Adjudication Officer.

Preliminary objection - The complaint is out of time

In his Complaint Form, the Complainant purports to make a complaint that he was underpaid having regard to Civil Service Circulars.

The Complainant provides the 28th April 2019 as the date on which he should have received the payment he alleges is owing to him.

The Complainant states in his complaint form that he was promoted from the grade of Executive Officer on the 19th September 2021. Therefore, the very last date on which any purported underpayment could have occurred is that date.

Section 41(6) of the Workplace Relations Act 2015 (as amended) (“the 2015 Act”) provides that:

“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.”

Section 41(8) of the 2015 Act provides that:

“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.”

The Complaint Form herein is dated the 16th October 2024. Given that the very last date on which any alleged contravention could have taken place is the 19th September 2021, the complaint has been presented long after the six month limit provided for in section 41(6) of the 2015 Act. Section 41(8) is also of no assistance to the Complainant.

Since the matter is irredeemably time barred, the complaint cannot be entertained by the Adjudication Officer.

Strictly without prejudice to the foregoing objection:

The Complainant initially appears to complain that he was not promoted quickly enough since he states that he was subject to “an unfairly protracted” vetting process. He states that, but for this process, he would have been promoted from Clerical Officer to Executive Officer early in the third quarter of 2018.

As the Complainant will be well aware from his work in the Garda National Vetting Bureau, there are very good and sound reasons for the expanded vetting process required for personnel working in that Bureau, which has statutory responsibility for the vetting of persons working with children or vulnerable persons.

Having initially complained that he was not promoted quickly enough, the Complainant then goes on to complain that he was promoted too quickly.

The Complainant was promoted on 19 March 2019 and joined the Executive Officer grade at point one on the salary scale. However, the fundamental basis to the Complainant’s claim is that he ought to have been allowed defer his promotion until the 28th April 2019 to purportedly benefit from the terms of Circulars 07/2019 and 08/2019.

The Complainant cannot complain that he was promoted both too slowly and too quickly.

Paragraph 1.1 of Circular 08/2019, which was effective from the 1st January 2018, provides that:

“On promotion, an officer will be appointed at the minimum point of the new scale unless any of the conditions set out at 1.2 apply.”

Paragraph 1.2 is not applicable to the present circumstances and does not need to be considered further.

Paragraph 1.3 goes on to provide that:

“The date of promotion becomes the officer’s incremental date.”

It is apparent from the terms of Circular 08/2019 that it was correct that the Complainant entered the scale for the Executive Officer grade at the minimum point (point one) on the scale and that the 19th March was to be his future incremental date.

Circular 07/2019 deals with the application of additional increments awarded in the 2018 – 2020 pay agreement. Paragraph 1.3 of Circular 07/2019 states that

“The adjustments should be applied, as appropriate, to each eligible new entrant as defined below on their next normal increment date on or after 1st March 2019”.

However Paragraph 3.2 of Circular 07/2019 is also very clear that:

“For those currently on incremental points 1 or 2 of a salary scale, each will receive the normal increment due on their next normal increment date.”

Therefore, 07/2019 did not confer any additional benefit on the Complainant.

The Complainant claims that he ought to have been appointed as an Executive Officer on point two of the salary scale on his promotion date. He provides nothing to support this assertion.

The Complainant places reliance on Circular 34/1977. However, this Circular was revoked by Circular 08/2019 (section 8.5) as and from the 1st January 2018 and, therefore, is of no assistance.

The Complainant was paid as per the correct point of the scale that he was entitled to throughout. Therefore, there has been no breach of the provisions of the Payment of Wages Act 1991, whether as alleged or at all.

Findings and Conclusions:

This complaint was received on 16/10/2024.  It refers to a period in 2019 when the Complainant claims he should have been appointed to his grade first of all in “Quarter 4 in 2018, then argues that he should have been appointed on 28/04/2019 instead of 19/03/2019.

The Payment of Wages Act 1991 governs the circumstances in which deductions may be made from an employee’s wages and provides the term “wages properly payable” in Section 5(6) of the Act:

The Act provides the term “properly payable” at a point in time.  The Act does not provide for aspirations of employees to be paid before or after the date on which such events as promotions occur.  In this case the Complainant’s complaint is that he should have been paid for a promotion at a certain time either before or after the date the Respondent appointed him to his grade of E.O.  which was in 2019.

Section 41 of the Workplace Relations Act 2015 governing time limits for complaints provides:

“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”.

Section 41 (8) of the Act provides:

“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”.

As this complaint is clearly out of time, I find the complaint to be 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.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in accordance with the redress provisions of that Act.

Based on the reasons and findings above, I have decided that the complaint is out of time and is not well founded.

Dated:   10th April 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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