Complainant

Respondent

Parties

Ms Ana Maria Popa

Department of Justice

Representatives

Self-Represented

Mr Niall Fahy BL instructed by Ms Zoe Hughes Chief State Solicitor's Office

Act

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

CA-00074589-001

20/08/2025

This matter came before the Workplace Relations Commission dated 20/08/2025.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 25/06/2026. 

The Complainant is an Immigration Control Officer.  The Complainant commenced such employment on 27/11/2023 and continues in the employment. 

The within claim relates to the alleged failure of the Respondent to apply incremental credit when she moved to her new role with such failure constituting an alleged breach of the impleaded legislation.   

The Complainant was previously employed as a Social Care Worker at Oberstown Children Detention Centre. She subsequently applied for, and was successful at interview for the position of Immigration Control Officer at Dublin Airport where she is currently employed. 

The Respondent denies the Complainant is entitled to any relief on the grounds that she has been paid properly and appropriately under the terms of her employment.

CA-00074589-001

It is the Complainant’s case that at the time of leaving Oberstown she had reached point 7 of the relevant salary scale and when she commenced her employment as an Immigration Control Officer she was placed on point 1 of the salary scale as her previous public service experience had not been transferred. 

The Complainant submits she applied for Incremental Credit under Circular 21/2004 seeking recognition for her previous service and relevant experience.  The Complainant submits her application for Incremental Credit was refused on the basis that her previous experience and rates of pay were not considered analogous to the role of Immigration Control Officer. 

The Complainant submits that she was informed by HR that her previous experience was recognised and considered relevant for the role of Immigration Control Officer but her previous salary was not analogous to that of Immigration Officer. 

The Complainant maintains that the shift allowance her current position attracts should be taken into account when assessing whether her previous remuneration was analogous to her current role as when the shift allowance is included the salary comparison may satisfy the analogous pay requirement referred to in Circular 21/2004.

The Complainant at hearing submits that she had engaged extensively with HR on this matter.  The Complainant accepts that Circular 08/2019 setting out the revised arrangements applying to starting pay is applicable to her. 

The Complainant submits that some of the duties and responsibilities of the roles are similar and she makes specific reference in an email exhibited in her submissions that her daily duties had involved a lot of clerical work from writing daily reports; recording incidents; phone calls; preparing reports for meetings; making sure to keep up to date with daily visits; and appointments for young people detained there.  The Complainant submits that her reading of Circular 21/2004 indicates that her previous job meets the requirements for her credits to be transferred.  It is put to the Complainant that courtesy and respect for example would be a requirement for very job. 

The Complainant at hearing agrees that some of the duties are similar and when it is put to her she accepts that what she is saying is yes that some of the duties are similar. 

It is the Complainant’s argument that if the shift allowance is taken into account the pay scales would be analogous.  The Complainant is asked if she accepts that what is actually compared is the pay scales which she accepts but makes reference to her contract. 

CA-00074589-001

The Respondent denies that the Complainant is entitled to any relief on the grounds that she has been paid properly and appropriately under the terms of her employment. The Respondent contends that it is fully compliant with its obligations under the 1991 Act.

In essence the Complainant contends that she has not been placed on the correct point in the scale of increments of payment, leading to a loss of earnings, which the Respondent denies. While the Respondent sympathises with the Complainant’s disappointment in not earning as much as she would like, the Respondent contends that it has paid her all sums lawfully due to her under the terms of her employment.

The Complainant was placed at point 1 on the salary scale, initially earning €534.34 per week plus an additional 25% shift allowance owing to the 24 x 7 x 365 nature of the roster. 

Circular 21/2004 provides for the granting of an incremental credit for previous service at entry level grades. The circular provides as follows regarding the prior experience required:-

“(i) The agreement is in respect of persons who have previously been employed in the public service in Ireland, within the meaning of Section 1 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 (Appendix 1), or an equivalent body in the EU Member States at the grade of Clerical Officer (CO) or Executive Officer (EO) or at an equivalent grade. Although the following bodies are excluded under Schedule 1 of the Act (Appendix 2), solely for the purposes of this Circular, they should be counted as Public Service bodies; An Post, Telecom Eireann, Coillte Teo. and Irish Aviation Authority.

(ii) Experience in the public service in Ireland or in the EU member states will have to be relevant to the work of the grade.”

Circular 08/2019 provides for revised arrangements applying to starting pay on promotion and appointment in the Civil Service for existing public servants.

“4.1 Appointees to the civil service who are moving from posts elsewhere in the public service to what is deemed to be an analogous grade and pay scale may be appointed at the current point of scale.

4.2 It is for the recruiting Department/Office to satisfy itself that analogous conditions exist. HR units should direct any queries on this matter to this Department (see below).

4.3 Departments/Offices should put in place an internal appeals process at senior HR Manager/Personnel Officer level to address any issues arising from decisions taken in respect of such analogous appointments.”

Circular 08/2019 must be read in conjunction with circular 21/2004. It clearly amends the earlier circular in a manner not relevant for present purposes but in all other respects circular 21/2004 remains in force.

The Competition booklet advertising the competition in which the Complainant secured employment provides:

“Entry will be at the minimum of the Clerical Officer scale and the rate of remuneration will not be subject to negotiation and may be adjusted from time to time in line with Government pay policy.

Different terms and conditions may apply if you are a currently serving civil or public servant. Subject to satisfactory performance, increments may be payable in line with current Government Policy.”

The reference in the Competition Booklet to the effect that “different terms and conditions may apply” is intended to alert applicants to this as a possibility which may arise in a variety of scenarios, including where a public servant previously served in a role at a different grade, or where a public servant served in a role to which particular pension arrangements applied.

The Respondent contends that there has been no underpayment. The circulars provide that in order for an incremental credit to be awarded, both the role and the grade pay scale would need to be analogous. In the Complainant’s case neither the pay scales nor the roles are analogous.

In her submissions, the Complainant highlights superficial similarities between some of the functions in each role. However, having regard to the totality of the functions, it is clear the roles are not analogous. The Complainant’s former role in Oberstown involved caring for young children in difficult personal circumstances and attending to their physical needs and working as a role model for them. The Complainant’s current role involves manning and operation of the eGates, monitoring passports for forgeries and otherwise screening arrivals at Dublin Airport. While there are some peripheral administrative functions that may be similar – as may arise in any job – it is submitted that it cannot be fairly said that the two roles are analogous. While both roles are broadly within the field of justice administration, the Oberstown role was essentially rehabilitative and care giving whereas the Dublin Airport role is a state security role.

The Complainant also contends that, if the 25% shift allowance is included, which is supplemented on to her pay at the given point in the scale, then the pay scales are analogous. It is submitted that this is not a correct application of the circulars which require a comparison of the “pay scales” and not a comparison of take-home pay. Even if the roles were analogous, the pay scales are not and so the refusal was duly justified.

It is submitted therefore that the roles are not analogous regarding either pay scales or duties and as such the Complainant was correctly refused the incremental credit.

The Respondent witness Ms Whyte outlines that she is an APO with the Respondent; she has worked in recruitment and competition for 7 years.  The witness maintains she is familiar with the circulars referenced throughout and their application and these matters mostly come to her desk on appeal.  The witness submits the duties are not similar for the most part; there are some commonalities but the roles are not similar.  It is submitted the other requirement is the pay scales should be similar and there is no relationship between the pay scales here; they are completely different.  It is submitted that it is base pay only that is considered. 

The Respondent in closing submits the roles are not analogous; there are some superficial similarities.  It is submitted the Complainant was correctly placed on the scale and it is accepted that she is disappointed; the circulars are legally binding and have to be applied consistently and both elements have to be satisfied; both role and pay scale. 

CA-00074589-001

This is a complaint pursuant to the Payment of Wages Act, 1991

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 (“the 1991 Act”)   provides the following definition of wages:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5 of the 1991 Act sets out:

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the 1991 Act. 

In the case of Marek Balans v. Tesco Ireland Limited[2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made.  If it is established that a deduction within the meaning of the Act had been made, the WRC would then consider whether that deduction was lawful. 

The 1991 Act does not define the concept of “properly payable” and I must reach a conclusion on this by reference to objective criteria and with due deference to previous findings of the Labour Court or other authorities. 

The Relevant Facts

It is common case the Complainant commenced employment as an Immigration Control Officer in November 2023 having previously worked as a Residential Social Care Worker in Oberstown Child Detention Centre.  It is not in dispute the Complainant was placed on point 1 of the salary scale.  It is not in dispute the Complainant’s claim is that she should have been placed on point 7.  It is the Complainant’s case that her shift allowance should be taken into account on assimilation.    

It falls to me to decide whether or not the Complainant has been paid properly under the terms of her employment or if there has been an unlawful deduction as alleged by the Complainant. 

Having considered the totality of the evidence, I am satisfied the approach taken by the Respondent when aligning the Complainant to a point on the salary scale is in accordance with the Circulars by which the Respondent is bound.  Even if I were to accept that the roles were analogous the fact still remains that in order for an incremental credit to be applied both the role and the grade pay scale would need to be analogous. 

Circular 08/2019 provides as follows:

“4.1 Appointees to the civil service who are moving from posts elsewhere in the public service to what is deemed to be an analogous grade and pay scale may be appointed at the current point of scale.

I am satisfied that what the Circulars require is a comparison of the pay scales namely the basic pay as opposed to the ‘take home’ pay.  I am unable to accept the Complainant’s argument that her shift allowance, which is a fixed premium for working unsociable hours, and is added to her basic pay, should be factored into the equation on assimilation.  I am satisfied wages ‘properly payable’ to the Complainant have been discharged. 

For the reasons set out above, I am unable to find there has been an unlawful deduction from the Complainant’s wages.  Accordingly, I find this complaint as presented to be not well-founded. 

CA-00074589-001

For the reasons set out above I decide this complaint is not well-founded.