Complainant

Respondent

Anonymised Parties

Bank Worker

Bank

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00013973-001

15/09/2017

The Complainant has been employed with the Respondent from October 2000. He works 36.2 hours a week and he was paid €867,336.00 per annum but is currently paid €79,175.00. He referred a dispute to the Workplace Relations Commission on 15th September 2017 in relation to his annual salary following promotion..

The Complainant has been employed with the Respondent Bank from 31st October 2000 and he was promoted to Bank Executive and then again to a higher Grade. He was promoted to his current grade on 24th April 2017. Prior to this promotion the Complainant was earning a combined salary, including salary, shift allowance of 20% and a guaranteed structured overtime element of 10%, therefore bringing his annual salary to approx. €87,093.

Upon his promotion in April 2017 he was offered a new contract with a salary of £73,728.00 which was some €13,000 lower than his previous combined salary. The Complainant was aware that previously the Bank took into account combined salary (including shift and overtime) in calculating the salary of the new promotion. The Complainant raised the issue and he was issued with a second contract and he was offered a salary of €87,336.00 being point 5 on his new promoted scale. He accepted and commenced his new role and received this salary as per his contract for the first 2 months.

Some 3 months later he received a letter from the Respondent which claimed that he had been offered the incorrect salary and that they had applied a named Circular resulting in an overpayment to him for the previous 2 months and that his correct salary should be €73,728 being point 2 on the scale but that he would be allowed to mark time on a salary of €79,175. This meant a reduction in his salary of some €7918.00 per annum. UNITE stated that the Complainant did not agree to this reduction in his salary and is clearly in breach of Section 5 of the Payment of Wages Act, 1991. There is a loss of €7918.00 per annum since April 2017. The Complainant is seeking restoration of his agreed contract of employment.

UNITE stated that there were no discussions with them and they referred to Section 12 of the specified Circular which does provide as follows “ Where (named) arrangements concerning starting pay on promotion are more favourable…..then they may be retained”. UNITE argued that the Respondent has previously retained more favourable applications and they stated that they have negotiated Collective Agreements to address issues that may arise in the Respondent workplace and they suggested that this issue should be addressed through the Collective Bargaining mechanism within the Respondent’s employment.

The Complainant commenced employment with the Respondent on 31st October 2000 in a specified grade. He was subsequently promoted in 2002 and again in 2011. He transferred on 7th July 2014 to a specified position where he was required to work a shift rotation for which he was paid a shift allowance of 20% of basic pay. He had a salary of €65,797 plus a shift allowance of €13,196.00

The Complainant was promoted to his current grade on 24th April 2017, a role which no longer requires a shift rotation. He was provided with a specified purpose contract which stated “As a guideline, it is anticipated that the duration of the role will be 18 months”. The Respondent is governed by a specified Circular “Starting Pay on Promotion or Establishment”. This sets down the rules governing starting pay in the context of an employee being in receipt of an allowance in the previous grade prior to promotion. This allows for “mark time”.

In the original calculation, both the shift allowance and the accrued increments were mistakenly taken into account in the calculation of the Complainant’s salary and he was offered €87,336. In June, following an internal investigation in an unrelated matter it became apparent that the Complainant was overpaid. He should have been placed off scale on €79,175.00 upon promotion on a “mark time” basis. His salary was amended effective from 1st July 2017 and they sought to recoup the overpayment but following representation it was agreed to await the outcome of this referral to the WRC,

On the basis of the evidence, written submissions and questioning and discussion at the Hearing I find and recommend as follows –

Both Parties confirmed that they operate a Collective Bargaining system in the workplace and they also confirmed that this issue concerning the application of the specified Circular and its application within the Respondent’s employment had not been discussed within this system.

The Respondent also confirmed at the Hearing that they do reserve and retain their right to apply starting pay to external appointments.

Both Parties also confirmed that the initial offer in relation to salary was €73,728. This was done by way of either email or was a verbal communication. When the Complainant queried this he was offered a written contract with a specified salary of €87,093.00 and he received this for the first two months of his employment in the promoted Grade.

I recommend that the application of the Specified Circular, within the Respondent’s employment, should be addressed by both Parties through their Collective Bargaining System and that in the meantime the Complainant should retain his Contractual Salary of €87,093.00, effective from April 2017.

On the basis of the evidence and my findings above I recommend that both Parties should engage through their agreed Collective Bargaining system, on the application of the Specified Numbered and named Circular, to the Respondent’s employment. I also recommend that the Complainant should retain his salary as per his Contract of Employment of €87,093.00, effective from April 2017.

Industrial Relations – dispute concerning application of contractual term on salary – recommend Collective Agreement on the application to the Respondent’s workforce.