ADJ-00003290

Complainant

Respondent

Anonymised Parties

A Senior Engineer

A Local Authority

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-00004865-001

26/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00004865-002

26/05/2016

The Complainant is employed as a Senior Engineer with a local authority. He alleges that an unlawful deduction was made from his salary in his role as an Acting Senior Executive Scientist in water services. He attempted to resolve this matter with a local authority without success. He filed a complaint with the Workplace Relations Commission on the 26^th of May 2016 alleging an unlawful deduction of his wages.

The Complainant has been employed by a local authority since 2000. He was employed as an Assistant Executive Scientist from 2000 to December 2004. With effect from the 17^th of January 2005, the Complainant was appointed as the acting senior executive scientist in the Environment Department to replace a Senior Executive Engineer who was on secondment. This acting role continued uninterrupted until the 1^st of March 2013.

On 1^st of March 2013, the Respondent terminated the Complainant’s acting position siting a Department of Environment circular as justification. The Complainant appealed this decision to the Labour Court. During the Complainant’s appeal process, the Respondent transferred the Complainant (despite the Complainant’s request to remain in the Environment Department pending the outcome of his appeal) to a new role in the Water Services Department on the 2^nd of December 2013.

On the 9^th of May 2014, the Labour Court found in recommendation AD1432 that the Complainant at all times retained an entitlement to fill the vacant post due to the contract given to the employee on his appointment. Based on the fact that the seconded employee had not returned to the substantive post, the Labour Court stated in its recommendation, that the Complainant had an entitlement until the seconded employee returns to the substantive post, to remain in his acting post until the vacancy is filled by open competition or the post is suppressed.

On the 16^th of June 2014, the Complainant wrote to a local authority and queried whether the labour Court Recommendation would be implemented, and if so, as to when the Complainant would be reinstated to the Acting Senior Executive Scientist Post in the Environment Department that the Complainant had been removed from on the 1^st of March 2013.

On the 19^th of June 2014, the Respondent advised that the CE, after having examined and given due course to the decision of the Court, approved the reinstatement of the Acting post. However, the Respondent stated that the Complainant shall remain in the Water Services Role which the Complainant was transferred to in December 2013. The Complainant was further advised that he would be assigned duties in line with his position as Acting Senior Executive Scientist. It should be noted that this was not in adherence with the Labour Court decision AD1432.

On the 6^th of August 2016, the Respondent advised the Complainant in writing that the seconded employee’s period of secondment had now ceased and that the seconded employee was due to return to work with the employer within two to three weeks and that the Complainant’s Acting contract was going to be terminated accordingly. This did not happen, and 6 months later on the 15^th of February 2016, he Respondent again wrote to the Complainant advising that the seconded employee had returned to work and that the acting arrangement would cease on the 13^th of March 2016.

On the 7^th of March 2016, the Complainant wrote to the Respondent advising that no consultation had taken place in relation to the decision and requested the respondent to give the Complainant an opportunity to consult with the Respondent before deducting his wages. On the 9^th of March 2016, the Respondent stated that the deduction would go ahead but would be available to meet with the Complainant to discuss the issue. On the 13^th of March 2016, the Respondent terminated the Complainant’s long-term Acting Contract of over 11 years.

The Respondent agreed to meet with the Complainant on the 5^th of April 2016. At this stage the deduction in payment had already been made. The Complainant outlined his position at the meeting but the employer advised that their position as outlined on the 15^th of February 2016 would remain.

Complainant’s Argument:

In the implementation of the Labour Court decision AD1432 the Respondent assigned the Complainant to a post of Senior Executive Scientist in the Water Services Department. As a result, the Complainant was now an Acting Senior Executive Scientist in the Water Services Department.

As the Complainant was assigned to Water Services and was not reinstated and no longer acting up to the vacant Acting Senior Executive Scientist post in the Environment Section, the Complainant became the de facto substantive post holder of a Senior Executive Senior Scientist post in Water Services. The Water Services working structures issued to the Complainant in 2014 and 2015 clearly illustrates that the Acting Senior Executive Scientists reporting arrangements that were in place after the Complainant was reinstated as the Acting Senior Executive Scientist in the Water Services. The Complainant’s role and reporting arrangements remain the same to this day and have not changed despite the seconded engineer returning to work and the Complainant’s wages being deducted. The Complainant did not assume the role of Executive Environmental Officer as stated by the Respondent. Since the 13^th of March 2016, the Complainant remains in the Acting Senior Executive Scientist water services post and still to this day continues to carry out the higher role of an Acting Senior Executive Scientist in the Water Services as assigned to him.

There is no legal or contractual reason for the deduction in wages. Nothing has changed. The seconded engineer upon his return to work was assigned to a new role in another department, while the Complainant at all times has been left carrying out the higher role of Acting Senior Executive Scientist in Water Services, without the full pay since the 13^th of March 2016.

The Complainant’s salary was deducted by the amount of €7,559 Gross per annum and this allowance would have, in accordance with the contract, risen to €9,183 per annum on the 1^st of July 2016.

The Complainant requested the adjudicator to find that the deduction in his wages is an illegal deduction as per the Payment of Wages Act, 1991, and that the Complainant’s salary is reinstated and that the Complainant is re-paid in full for the job that he has been and is still carrying out since the 13^th of March 2016. 

As a result of a secondment arrangement a local authority held a competition for the position of Acting Senior Executive Scientists in late 2004. The Complainant was placed first on the panel and was subsequently appointed to the Acting position on the 17^th of January 2005. He remained in that position until the 1^st of March 2013.

The employer in November 2012, received Circular letter LG(P) 08/12 from the Department of Environment. Under the provisions of the circular, the employer was required to review the incidents of Acting arrangements and to take measures as appropriate to reduce such incidences with immediate effect. The employer engaged in the required examination and ceased most acting arrangements as and from the 1^st of March 2013 at which point the Complainant reverted to his permanent substantive post of Executive Scientist.

Arising from normal staff resourcing prioritisation across the organisation the Complainant was reassigned within his directorate from his role as Environmental Officer in the Environment Department to a new role at the same grade in the Water Services Department in late November 2013. The Complainant referred the issue of caseation of his Acting Senior Executive Scientist arrangement to the Rights Commissioner Service under the Payment of Wages Act, Industrial Relations Acts and Protection of Employees (Fixed-term workers) Act. A recommendation in favour of the employer issued from the Rights Commissioner Service on the 7^th of November 2013.

The recommendation of the Rights Commissioner Service was appealed by the Complainant. He did not appeal the findings under the Fixed-Term legislation. An appeal hearing was heard on the 5^th of March 2014 after which the Labour Court issued its decision which was determined on the 9^th of May 2014 as follows;

‘The Court finds that the Claimant was appointed to the acting position while the Senior Executive Engineer was on secondment to another local authority. The Court notes that the seconded engineer has not effectively returned to his substantive post to date. Accordingly, the Court finds that the Complainant at all times retained an entitlement to continue to fill the vacant post until the seconded employee returns to work, the vacancy is filled by open competition or the post is suppressed.’

Arising from this decision in June 2014, the employer reinstated the Acting arrangement (with associated allowance) with arrears arising from the difference in pay of the substantive post and the Acting post paid from the 1^st of March 2013. The Complainant was advised that he would remain assigned to the Water Services Department and that, as outlined in the Labour Court decision, the Acting arrangement would remain in place until the seconded employee returned to work, the vacancy was filled by open competition, or the post was suppressed.

On the 25^th of April 2015, the Complainant was given notice that the seconded employee would shortly return to work with the employer and that in accordance with the Labour Court decision, the Acting arrangement would cease from that date and he would assume his post as Executive Environmental Officer.

On 6^th of August 2015, the Complainant was given notice that the seconded employee’s period of secondment had ceased and he was due to return to service with the employer. The Seconded employee was however on a period of leave and a return date from this leave had not been confirmed. The Complainant was advised that the acting arrangement would remain in place until he returned to the service.

On the 15^th of February 2016, the Complainant was formally advised that the seconded employee

had returned to work and therefore the Acting arrangement would cease from the 13^th of March 2016. He was also advised that he would assume his substantive post as Executive Environmental Officer assigned to the Water Services Department. The Complainant requested a meeting to discuss this matter and same was held on the 22^nd of March 2016. The Complainant was advised that the issue of the acting up arrangement and the length of time appointed into same was dealt with by the Court decision. The employer complied to the terms of the decision in full in that the Acting arrangement was reinstated with the appropriate arrears paid and ceased only when the seconded employee returned to work with the employer. The Complainant was also advised that the employer did not agree with his position that he should have been reassigned to the Environment Department arising from the appeal decision of the Labour Court, as the decision of the Labour Court was only concerned with the ‘post’, not the ‘role’ or ‘assignment’ of the post. It is a matter for the CE to determine as to the appropriate assignment of staff. 

Employer Position

The employer submits that the Complainant was treated correctly in relation to the Labour Court decision. In accordance with that determination, the Complainant reverted to his substantive post when the seconded employee returned to the workplace. The ending of his acting arrangement was in accordance with the Labour Court determination and also in accordance with the agreement reached at national level in relation to the regularisation of long-term Acting arrangements.

The employer has not made an illegal deduction from the Complainant’s salary. The Complainant held an acting position form some years following the return of the seconded employee the Acting arrangement ceased and he was returned to his substantive salary. The Complainant reverted to his substantive post. Therefore the higher rate of pay was not properly payable to the Complainant. There is no practise or precedent for regularisation to a higher position in the Local-Government Sector other than by competition. This is a principle that has been protected by both unions and management alike. The employer accepts that the Complainant has been working for a considerable period of time at the higher grade in an Acting Capacity and submits that the Complainant has in fact, benefitted from this arrangement. This claim is essentially a regrading claim and this is precluded as being cost increasing under the Public Service Agreements. The Complainant was not demoted but returned to his substantive position following the cessation of an Acting assignment.

In the case of LCC and Paul Kelly LCR20634 it was found that ;

‘Having considered the submissions of each of the parties, the Court finds that the regrading of staff in local Authorities is regulated by Legal, Public Policy and collective agreement constraints. In this case the Claimant seeks to be regraded on a personal basis outside those constraints.’

The employer disputes the contention that the seconded employee not returning to the exact same role as that into which the Complainant was acting up provides grounds for a claim. The employer has agreed a workforce plan with the Department and must assign staff as appropriate within agreed numbers. It is a matter for the employer to determine how resources are managed and the employer reserves the right to assign employees across the organisation as appropriate.

The Complainant has previously failed in his claim for Regularisation at a higher grade and he has previously failed in his claim that he continued to be paid at the salary of a higher Grade. The employer requests that the adjudication officer recommends in its favour in this matter. 

On the 28^th of July 2003, the Complainant was appointed to the permanent post of ‘Executive Environmental Officer’.

On the 17^th of January 2005, the Complainant was appointed to the position of ‘Acting Senior Executive Scientist.’

The Complainant carried out this role in the Environmental Department until the 1^st of March 2013.

On the 2^nd of December 2013 the Respondent terminated this role.

As a result of a Labour Court recommendation ADJ-1432 dated the 9^th of May 2014, the Respondent reinstated the acting arrangements for the Complainant on the 19^th of June 2014 but on this occasion the role was carried out in the Water Services Department effective from the 1^st of March 2013.

On the 13^th of March 2016 the Respondent terminated the Complainant’s acting contract with the consequential loss of the acting-premium allowance. The Complainant argued in evidence that to this day he is still carrying out exactly the same duties that he did when he was appointed to the acting-up role in the Water Services Department and it was unfair to terminate his acting up allowance.