PWD1818

FULL RECOMMENDATION

PW/18/14

DETERMINATIONNO.PWD1818

ADJ-00009632 CA-00012662-001 CA-00012663-001

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

DEPARTMENT OF PUBLIC EXPENDITURE AND REFORM

- AND -

BRIAN COLLINS

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Mr Murphy
Worker Member: Mr McCarthy

SUBJECT:
1. Appeal of Adjudication Officer Decision No.ADJ00009632 CA00012663-001.

BACKGROUND:

2. The employee appealed the Decision of an Adjudication Officer pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 3 April 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-

DETERMINATION:

This is an appeal by Brian Collins against an Adjudication Officer’s Decision ADJ-00009632 given under the Payment of Wages Act 1991(the Act) in a claim by Mr Collins that he suffered an unlawful deduction from his wages.

Background

The Complainant is a civil servant who commenced employment in the Civil Service on the 18^thMarch 1986. On the 22^ndof February 2017, the Complainant was promoted to the position of Executive Officer (EO) ICT Specialist. He was offered a new contract of employment which among other things set out the pay scale for the job and the rate that he would be paid on appointment. The Complainant signed the contract and took up his appointment in a new Department.

After a few weeks in the new position the Complainant had not received the pay increase he expected and contacted the Respondent’s HR Department. There was an exchange of emails and by email of the 23^rdMarch 2017 the Respondent’s HR Department advised the Complainant that the wrong starting pay had been included in the contract. The Respondent set out in the email an explanation of what had happened and of how the salary should have been calculated. An apology was also offered to the Complainant.

Complainant’s case

The Complainant does not accept that the wrong rate was included in the contract and believes that the Respondent is now obliged to pay him that rate. It is his contention that he may not have accepted the job if he had been offered the lower rate. He does not dispute that there are agreed General Council Reports setting out how workers in his position should be treated when promoted through an external competition. However, he was not made aware of these at any time during the competition process.

Respondent’s case

The rate of pay set out in the contract was calculated incorrectly. When the HR Department became aware of this they corrected the rate, advised the Complainant and apologised to him. The Complainant never actually received the higher rate of pay. The Complainant is now on the correct rate of pay and any monies owed to him arising from his promotion have been paid.

The applicable law

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6)states;

“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 this Act), or
  (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

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

Discussion

To ground a claim in respect of an unlawful deduction under the Act the wages concerned must be properly payable. It is clear to the Court from the submissions of both parties and the oral submissions made on the day that the rate of pay set out in the contract was not properly payable to the Complainant and therefore his appeal must fail.

The Decision of the Adjudication Officer is upheld. The appeal fails.

The Court so decides.

Signed on behalf of the Labour Court

Louise O'Donnell
TH______________________
11th April 2018Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.