ADJUDICATION OFFICER DECISIONS and RECOMMENDATION

Adjudication Reference: ADJ-00005851

Complaints and Dispute:

Date of Adjudication Hearing: 30/05/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991, Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

CA-00008055-001 Claim under the Payment of Wages Act, 1991.

I have given consideration to the claim outlined and the response received to same.

The definition of wages in the Payment of Wages Act, 1991 states –

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 giving such notice.

Section 5(6) (a) of the Act provides:

Where –

(a)    The total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion ( after making any deductions therefrom that fall to be made and are in accordance with the Act ) ..

…….

Then except in so far as the deficiency or non payment is attributable to an error of computation, the amount of the deficiency or non payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant contends that the 2010 Pay scale is properly payable to him and that its non payment constitutes an unlawful deduction of €4,608 on November 2, 2016. He cited his first pay date as initially 4 April 2016 and amended this at hearing to 5 May 2016.

The Respondent has disputed this claim and has placed the complainant within the contractual ambit of the merged scales which emerged from Section 2.31 Haddington Road Agreement.

Section 41 (6) of the Workplace Relations Act, 2015 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.

The Complaint was submitted on 8 November 2016, following a period of extensive email communication between the parties.

In HSE and John Mc Dermott [2014] IEHC 331, Hogan J set down an extensive analysis of the parameters of the then Section 6(4) of the Act.

“ ….. In other words ,time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention ,but rather from the date of the contravention “ to which the complaint relates “

He went on to emphasis the central issue of how the complaint was framed:

“Depending of course on how the complaint is framed, only complaints which “relate” to the last six months (or if the Rights Commissioner is satisfied that there are exceptional circumstances…….) prior to the presentation of the complaint to the Rights Commissioners will not be time barred.”

The Complainant gave evidence that he was engaged in extensive email commentary with the respondent throughout the early months of his employment. He did not advance an argument for the application of a “reasonable cause” extension. I find that in accordance with Section 41(6) of the Workplace Relations Act, 2015, the cognisable period for this claim to be 9 May 2016 to 7 November 2016.

I have considered both parties divergent views in relation to this claim .I note that the complainant has a highly defined level of dissatisfaction with his salary paid during the cognisable period .The Respondent has outlined the rationale for this payment .

For my part, I noted that the mixed messages on pay scales given to the complainant were confusing and not remedied by email communication .However; I note that his formal letter of undertaking was concluded by him with reference to the merged scales.

Being a New Entrant to a Government Department should have been accompanied by a far more extensive induction period that what was described at the Hearing .The case was not helped either by the decentralised base of the complainant as opposed to the Centrality of the Government Dept. .

However, I must decide whether the 2010 Pay Scale was properly payable to the complainant?

The Complainant made a strong case for equivalence with the HEO grade and Assistant Auditor Grade. While I accept there was some mutuality in terms of annual leave, the salary was not the same as evidenced by the Complainants current alignment to that grade as Auditor.

The Complainant also made the case that the grade of Assistant Auditor was not a traditional recruitment grade .While I note that that there had been some mobility to the grade from within the service, I accept that the grade has been a traditional recruitment grade. I noted the Respondent argument that the Circular of 23 December, 2010 did not delineate each grade specifically and I can see that this caused an ambiguity for the complainant. The Respondent contended that they had applied the new entry scales to new entrants while applying the 2010 pay scales to long serving civil servants .I find that it would have been beneficial for the parties to have had a direct engagement on this topic outside basic email commentary .It is important to remember that the complainant came from the Private Sector and suffered a considerable differential in pay on arrival .He may not have had a working knowledge of the labyrinth of Government Circulars and how they were applied .The Respondent had provision for Mediation where the complainants defined sense of what ought to have been paid could have been explored and the Respondent should have permitted this to proceed .

The Complainant presented a lot of background information on efforts made by Colleagues to merge the grades of Assistant Auditor and Auditor in the civil service, yet there was no evidence of a finished product in that regard. It presented in the email log as unfinished business.

As a result of the above findings, I must conclude that the salary properly payable to the complainant was that of the merged pay scales referred to in Circular 2/2014.

Based on the evidence submitted, I have not found that the Complainants salary was subjected to an illegal deduction as outlined.

Decisions and Recommendation:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

1. CA-00008055-001 Claim under the Payment of Wages Act, 1991.

Section 6 of the Payment of Wages Act, 1991 requires me to make a decision in relation to this complaint.

I have found that the claim is not well founded.

The Claimant submitted the same outline in support of his claim under the IR Act .The Respondent submitted that the claimant did not satisfy the definition of a “worker” as defined in Section 23 of the Industrial Relations Act, 1990 and sought that the claim be dismissed.

Recommendation: Industrial Relations Claim

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have given regard to Section 23(1) (a) of the Industrial Relations Act, 1946-1976, in relation to the definition of a “worker” .The Claimant has not disputed that he is a person employed by the State for the purposes of this claim. I have found, therefore that I lack the jurisdiction to investigate the claim as advanced.

Complainants Submission:

The Complainant submitted that he was paid €41,473 in his role as Assistant Auditor per annum. On November 17, 2016, He contended that he had been denied Equal Pay with 9 named colleagues in the role of Assistant Auditor .At the hearing, the complainant submitted that the equivalent staff were paid a different rate by apparent admission of a Government Dept, which created an absence of Equality .He also sought parity with those staff recruited via confined and open competition in 2013. He made a further claim for parity with the role of Auditor, while acknowledging that he had been promoted to this grade in April/May 2017.

At the hearing, the complainant submitted that he was 30 years old and his submitted comparator was a female Assistant Auditor 38 years old, who earned €58,000 per annum and had accessed the position via open competition. He contended that he undertook identical work to his named comparator and the pay differential was inequitable .He placed his senior management team on notice one month before submitting his equal pay claim to the WRC.

The Claimant gave evidence of having sustained a large reduction in pay on transition from Private Sector employment to Public Sector Employment, but stated that he had always wished to work in the public sector. He sought equal pay with his named comparator and arrears.

Respondent Submission:

The Respondent refuted the claim for discrimination in relation to Equal Pay .The Respondent submitted that the Complainant was on the same pay scale as all other Assistant Auditors recruited in the 2015 competition, €41,473-€54,329 with 2 L.S.I.

The Respondent submitted that it was made clear in the competition documents that entry would be at the minimum of the scale for new entrants to the civil service and would not be subject to negotiation. The candidates who were previously employed in the civil or public service prior to their appointment had their previous salary used as a baseline for calculation of their position on the new scale and would be maintained on a” Marked time” basis .

The Respondent submitted that another Assistant Auditor, Ms A joined the service at the same time as the complainant and was paid the same salary as him.

The Respondent also submitted that the named comparator had been employed prior to the public sector embargo and was paid on pre 2010 rates.

The Respondent submitted that the complainant was a new entrant and his age was not the reason he was paid less .The service permitted mobility within the public sector .Retention of pay scales reflective of this mobility were not discriminatory and was objectively justifiable by Government circular .

Findings and Conclusions:

I have listened carefully to the parties in this case and have considered all submissions and evidence.

1. provides:

“It shall be a term of the contract under which C is employed that subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.”

The basis of equal pay is that a person is doing like work with an identified comparator. “Like work” is defined in s.7 of the Employment Equality Acts as :

Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a)

Both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b)

the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c)

The work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, and responsibility and working conditions.

In NUI V Ahern [2005]2 IR 577, a case taken by Telephone Operatives under the Anti-Discrimination (Pay) Act 1974 (the “1974 Act”) ,the Supreme Court accepted that the pay of security operatives was red circled and was not therefore a breach of the legislation.

In the present case, the complainant has submitted that he was denied equal pay by the respondent. He submitted a number of comparators, but did not submit details of their earnings, job descriptions or job profile.

I find that given that the burden of proof rests with the complainant, I have insufficient evidence before me to arrive at a conclusion that the complainant has satisfied the burden of proof to raise an inference of discrimination on age grounds .I note that the complainant did not exercise his discretion to secure this information in accordance with Section 76 of the Act.

I do not have scope to investigate the complainant’s claims for parity with 2010 pay scales or with the Auditor grade.

I cannot find in favour of the complainant.

Dated:   02/11/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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