Complainant

Respondent

Parties

Felicity  Donnelly

Marine Institute

Representatives

Fórsa

IBEC

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-00073216-001

08/07/2025

The Complainant appeared with her representative Mr Eugene Gargan of Fórsa. She gave evidence on Affirmation. It was her complaint that she was underpaid by the Respondent in the sum of €25,000 which was due on 4 January 2021.

The Respondent was represented by Ms Aisling McDavitt of IBEC with Ms Catherine Johnston, Head of HR giving evidence on Affirmation.

Submissions were received and relied upon at the hearing.

Preliminary Objection

The Complainant submitted that the complaint was not statute barred as she only became aware of the issue within the six-month period preceding the claim. While accepting that she had been paid in accordance with her contract, it was contended that the salary point specified in the contract was incorrect, as Civil Service Circular 08/2019 entitled her to a higher rate of pay. The representative argued that this entitlement was not disclosed to the Complainant when she entered into the contract.

It was further submitted that the alleged incorrect salary placement has had an ongoing impact on the Complainant's earnings and pension entitlements. Accordingly, the Complainant sought redress for the continuing consequences of the alleged failure to apply the circular correctly.

Substantive Matter

It was the Complainant's evidence that she had been employed by the Respondent since July 1999. In October 2020, she successfully applied for promotion from Executive Officer to Scientific and Technical Officer ("STO") and commenced a fixed-term STO contract on 4 January 2021. She gave evidence that, although she had been at the Long Service Increment 3 point of the Executive Officer scale, she was appointed to Point 8 of the STO scale, which represented a reduction in pay. The Complainant stated that she queried this at the time and was informed by HR that the salary point was determined by constraints associated with EU project funding.

The Complainant gave evidence that she was not informed of DPER Circular 08/2019 when she accepted the STO appointment and therefore accepted the contract without knowledge of her alleged entitlement under the Circular. She stated that she regarded the promotion as a positive career opportunity and accepted the position on that basis.

The Complainant stated that, following the conclusion of the STO contract in December 2023, she returned to her Executive Officer role before successfully applying for a further STO position in early 2024. She gave evidence that she was required to resign from her substantive position in order to accept the new STO contract and that she resumed at Point 12 of the STO scale due to the absence of any significant break in service. The Complainant stated that she again sought to have her salary placement reviewed but her request was rejected. She further stated that she remained unaware of DPER Circular 08/2019 at that time and consequently accepted the offer.

The Complainant gave evidence that she first became aware of DPER Circular 08/2019 in December 2024 during a discussion with a colleague. Thereafter, the Complainant engaged in correspondence with HR seeking to resolve her own position.

The Complainant submitted that Circular 08/2019 governed salary placement on promotion and did not provide an exception for project-funded roles. Referring in particular to Clause 1.2(i) of the Circular, she contended that she should have been appointed to Point 11 of the STO scale in January 2021 rather than Point 8. It was her evidence that the failure to apply the Circular correctly resulted in her being placed on an incorrect point of the salary scale and that she had accepted the contract without being fully informed of her entitlements. The Complainant requested that her salary placement be reviewed retrospectively and that any necessary adjustments be made to her pay going forward.

Preliminary Objection

The Respondent raised a preliminary objection that any complaint relating to the Complainant's salary on her fixed-term contract running from 4 January 2021 to 3 January 2024 was out of time pursuant to Section 6(4) of the Payment of Wages Act 1991. The Respondent submitted that any alleged underpayment occurred outside the six-month statutory limitation period and that, accordingly, the Adjudication Officer lacked jurisdiction to consider claims arising from that expired contract.

Substantive Matter

Ms Johnston gave evidence for the Respondent. It was the witnesses’ evidence that the Complainant's STO position, commencing in January 2021, was funded through externally funded research projects with fixed budget allocations. She stated that the funding available for the role determined the maximum salary that could be offered and that Point 8 of the STO scale represented the highest salary that could be accommodated within the project budget. She said that, because of those funding constraints, the Respondent did not consider DPER Circular 08/2019 when determining the salary for the role, as the salary that would have resulted from application of the Circular exceeded the funding available for the project.

Ms Johnston explained that the Respondent operates under the aegis of the Department of Agriculture, Food and the Marine and that externally funded projects must meet all associated employment and operational costs from the allocated project funding. She stated that the Respondent is not permitted to subsidise project-funded positions from other funding sources.

In relation to the Complainant's 2024 STO appointment, Ms Johnston gave evidence that her salary was calculated by reference to her salary at that time and that she was placed on the nearest point of the STO scale above her existing salary, in circumstances where the funding available permitted this. She stated that the Complainant accepted the terms offered.

Ms Johnston stated that while salary scales are approved and circulated by the Respondent's parent Department, not all civil service circulars are applied rigidly by the Marine Institute, as it is a non-commercial semi-state body with its own employment arrangements. She referred to examples where the Marine Institute applies more favourable terms than those available in the wider civil service.

Ms Johnston also referred to documentation submitted to the Department seeking sanction to recruit project-funded staff. She stated that such business cases set out the funding source, duration and costs of proposed positions and typically indicate that appointments will be made at the first point of the relevant salary scale. She gave evidence that the sanction and grant documentation demonstrated that salaries for project-funded posts were determined by the level of funding approved and available under the relevant projects.

Finally, Ms Johnston reiterated the Respondent's position that DPER Circular 08/2019 did not apply to the Complainant's 2021 appointment because the funding available under the project could not support the salary level that would have resulted from its application. She stated that the salary offered to the Complainant was the maximum affordable salary within the approved project budget and that the Respondent was not entitled to supplement that funding from other sources.

It was submitted that the Complainant's employment consisted of a series of separate fixed-term contracts rather than continuous employment under a single contract. The Respondent submitted that each contract was linked to specific funding arrangements, contained an agreed salary point, and was accepted by the Complainant. The Respondent further submitted that the wages properly payable during the cognisable period were those specified in the Complainant's current contract, and as she had been paid in full in accordance with its terms, no unlawful deduction had occurred within the relevant six-month period.

Preliminary Objection

The cognisable period in this complaint is from 7 February 2025 to 8 July 2025. The alleged underpayment, or deduction using the language of the 1991, is said to be ongoing and therefore I am confined to consideration of the cognisable period only. No application was made to extend time.

It is noted there was no application to extend time.

Substantive Matter

Wages are defined by Section 1 of the Payment of Wages Act 1991 (“1991 Act”) as:

"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 provides:

“5.—(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.”

This complaint was brought under the Payment of Wages Act 1991 and therefore, my jurisdiction is limited to this Act only. Therefore, considering the definition of “wages”, the contract of employment is fundamental. The Complainant’s current contract of employment dated 19 March 2024 states: “The post is appointed on the approved Scientific & Technical Officer salary scale for this post runs from €36,086- €74,094 per annum for a full time role. In line with your previous public sector experience you shall remain at the eleventh point of the salary scale and increments may be awarded annually, subject to satisfactory performance in line with current Government Policy.”

It was the Complainant case that, upon her reappointment in 2024, her salary should have been determined in accordance with Circular 08/2019 and, in particular, Section A 1.2(i). The Respondent disputed this and instead submitted that the Complainant's salary placement was determined by reference to the funding arrangements applicable to the project under which she was employed.

Having considered the evidence presented by both parties, it is noted that the Complainant's contract of employment provides for salary placement on the applicable salary scale and refers to future salary progression in accordance with Government policy. It is further noted that the parties devoted significant attention to the applicability of Circular 08/2019 and its effect on the determination of the Complainant's starting salary upon her return to employment.

The Respondent’s evidence was the funding model applicable to the Complainant's role justified the salary point applied. However, no documentary evidence was produced demonstrating that the operation of Circular 08/2019 had been disapplied, modified, or otherwise excluded in respect of the Complainant's appointment. Nor was evidence adduced showing that the funding arrangements relied upon by the Respondent altered the contractual entitlement arising from the applicable public service pay provisions.

The evidence produced by the Respondent included a Protocols Sanction Cost Statement - May 2018 but it is unclear how this relates to the 2020 or 2024 positions held by the Complainant nor was there evidence from the individual who prepared it. The letter of 25 June 2020 from Ms Johnston refers to three positions but does not include or detail how funding restrictions the Complainant’s salary or grade point. The Job Description for the Complainant dated October 2020 for the position that the Complainant was ultimately successful in obtaining makes reference to a starting salary but from the contract signed by the Complainant refers to a point on the salary scale but does not make reference to funding restrictions. Similarly the 24 March 2024 Job Description refers to the range of salary but again does not make any reference to funding restrictions. The letter signed by Ms Johnston of 18 July 2024 postdates the Complainant’s March 2024 contract and again does not provide any clarity on the salary. Where the burden of proof rests with the Respondent, to clearly establish its arguments in evidence.

Having regard to the wording and purpose of Circular 08/2019, together with the contractual provisions governing the Complainant's remuneration, it can only be concluded that Circular 08/2019 formed part of the framework for determining the Complainant's salary on appointment. Consequently, the salary properly payable to the Complainant during the cognisable period must therefore be determined by reference to the provisions of that Circular.

In reaching this conclusion, consideration was given to the Respondent's submission that previous contracts were separate and distinct from the contract entered into in 2024. While it is accept that the WRC does not have jurisdiction to award redress in respect of deductions arising outside the cognisable period, the Complainant's previous service remains relevant insofar as it informs the correct application of Circular 08/2019 when determining the salary point applicable under the 2024 contract. Accordingly, it is not accepted that the existence or expiry of earlier contracts precludes consideration of the Complainant's service history for the limited purpose of establishing the wages properly payable during the cognisable period.

It is further found that the salary point applied by the Respondent under the 2024 contract did not reflect the salary placement required by Circular 08/2019. While the Complainant was paid in accordance with the salary point specified by the Respondent, the evidence establishes that the contract did not accurately give effect to the salary placement provisions applicable to her appointment. It follows that the wages properly payable to the Complainant for the purposes of the Payment of Wages Act 1991 were higher than those actually paid during the cognisable period.

Having determined that Circular 08/2019 governs the Complainant's salary placement and that the Respondent applied an incorrect point on the salary scale, it is concluded that the difference between the salary actually paid and the salary properly payable during the cognisable period constitutes a deduction within the meaning of Section 5 of the Payment of Wages Act 1991.

Accordingly, I find the complaint to be well founded.

I find the complaint to be well founded.

The Complainant is entitled to recover the amount of the underpayment arising during the cognisable period, being the difference between the salary paid and the salary properly payable pursuant to the application of Section A 1.2(i) of Circular 08/2019 for the period from 7 February 2025 to 8 July 2025.