ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001755

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946	CA-00002401-001	05/02/2016

Date of Adjudication Hearing: 21/06/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act, 1969, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

In August 2008 while on Maternity Leave the complainant’s employer ceased to pay her Dual Capacity Allowance. Prior to August 2008 the complainant was in receipt of the Dual Capacity Allowance with effect from 7th August 2007. On cessation of her Maternity Leave the complainant returned to work in February 2009 to the same job as previously held which still attracted the Dual Capacity Allowance. The employer decided to reinstate the Dual Capacity Allowance for the period while on Maternity Leave i.e. August 2008 to February 2009 only. This allowance was originally approved by the Area Recruitment Manager for employees in the Human Resource Department with effect from August 2007 as it was identified as a critical need for the provision of services/delivery of key Human Resource functions. The respondent did not provide the complainant with a valid reason as to why they only ceased paying her the Dual Capacity allowance. Circular 010/2009 regarding the implementation of saving measures was issued on 30th March 2009 implementation date 27th March 2009 until the end of 2010. Subsequently Circular 015/2009 regarding the moratorium on recruitment and promotions in the public service was issued in May 2009 effective date 27th March 2009. The complainant’s relative comparators in the Human Resources Department continued to receive payment of the Dual Capacity Allowance. In this regard & in respect of the forgoing it is the complainant’s contention that as she was in receipt of the Dual Capacity Allowance prior to the 27th March 2009 that the provisions of same should have remained intact & that she has been treated less favourably than her comparators in the Human Resource Department. Therefore the complainant is seeking retrospective payment of the Dual Capacity Allowance from February 2009 to 30th September 2013 inclusive.

Respondent’s Submission and Presentation:

Payment of the Dual Capacity Allowance commenced for the complainant in August 2007 and was extended initially on a three-monthly basis and then on six-monthly reviews expiring on 6 August 2008. The complainant was on maternity leave at this time and after she contacted management the Allowance was reinstated, expiring on 2 February 2009, the day the complainant returned from maternity leave. Shortly after this the Government introduced the moratorium on recruitment, promotions and acting arrangement and this took effect from 15 May 2009. The Allowance itself was discontinued in February 2012 following a Government review. The respondent is therefore precluded from now paying the Allowance.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Act, 1969, requires that I issue a Recommendation to the parties on the issues in dispute.

Recommendation:

The claimant is an Employee Relations Manager and commenced employment with the respondent in August 2001. She works 36 hours per week and is paid €1742.20 gross per fortnight.

The Allowance was worth between €3,500 and €3,700 per annum.

The facts in relation to this matter are not in dispute.

At the hearing the respondent stated that having reviewed the matter it was accepted that the Allowance should not have been the subject of periodical renewals. It therefore followed that the lapsing of the payment of the Allowance should not have occurred. This also meant that when regularisation took place the payment should have been taken in consideration for assimilation purposes.

It is clear from the above that the payment of the Allowance predated the introduction of the moratorium. I note that the complainant has now been regularised and is on the proper scale. The dispute is in regard to the period February 2009 to September 2013.

I therefore recommend that the respondent pay the complainant the sum of €16,750 in full and final settlement of all issues arising from this matter.

Dated: 14^th September 2016