Complainant

Respondent

Anonymised Parties

An Assistant Staff Officer

An Institute of Technology

Representatives

Mr. James Byrne B.L. on the instructions of Kenny Stephenson Chapman Solicitors

Mr. Tom Mallon B.L. on the instructions of Beauchamps Solicitors

Act

Dispute/Complaint Reference No.

Date of Receipt

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

CA-00016854-001

16/01/2018

Complaint seeking adjudication by Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016854-002

16/01/2018

The Complainant commenced employment with the Respondent on 19 May, 2003. She began working in the HR Department in October, 2005. On 13 October, 2008, the Complainant commenced work as a Recruitment Officer in the HR Department. This position was characterised as a Grade IV position at the level of an Assistant Staff Officer. The Complainant contends that although she is employed and remunerated at Grade IV, the actual duties which she is required to performs as part of her job are more properly those of a Grade VI employee and fall to be remunerated as such. The Complainant is seeking to be re-graded to Grade VI, taking into account that she has performed such duties for nearly 10 years, and that she be compensated for the fact that she has been paid as a lower level than was appropriate to the work which she actually performed during this period.

The Complainant also claims that the Respondent made unlawful deductions from her wages contrary to Section 5 of the Payment of Wages Act 1991.

The Respondent disputes the claim that the Complainant is doing work commensurate to Grade VI and contends that all of the duties which she performs in her role are encompassed within the job description for Grade IV.

The Respondent also disputes the claim that it has made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991.

CA-00016854-001 – Dispute under the Industrial Relations Act, 1969

The Complainant submitted that a Grade IV Staff Officer might be described as a junior position occupied by persons who typically assist and support higher staff. However, it is clear that the Complainant’s role requires her to perform duties far in excess of the Grade IV job specification. In particular, the Complainant is solely managing and coordinating recruitment for all of the Institute of Technology. The Complainant submitted that her role is far in excess of that of a Grade IV position whereby she would have been involved in maintaining the records of her employer and assisting more senior staff.

The Complainant submitted that the fallacy involved in characterising her position as that of an “assistant” officer at Grade IV is most clearly highlighted by the fact there are no other persons at the Institute of Technology performing duties with regard to recruitment. The Complainant is the sole recruiter for the Respondent. However, the Complainant is aware, through her Trade Union, that all other persons responsible for recruitment at other Institutes of Technology in her region are remunerated at Grade VI.

Further, certain persons who perform aspects of her duties in other departments in the Institute of Technology are remunerated at higher rates. In particular, the person performing equivalent duties in relation to payroll in the Research Support Unit is remunerated at Grade V.

The level of the Complainant’s duties and responsibilities by contrast to her job specification, without any recognition of her commitment or adjustment of her remuneration, was raised with the Respondent as early as 2014. On 20 November, 2014, the Complainant and her Trade Union representative met with the HR Manager and outlined the nature of her complaint.

Over the course of 2014 and 2015, the Complainant was asked to supply details of changes to her role and did so. She also provided a draft Grade V Recruitment Officer job specification. However, at that time, she was unaware that the Recruitment Officer position in another Institute of Technology in the region was at Grade VI. This engagement was followed by a number of meetings. However, despite this engagement, and despite there being no apparent dispute that the Complainant performs duties over and above that of Grade VI employees, the Respondent has declined on numerous occasions to re-grade her position on the basis that same is precluded by the Public Service Agreements.

The Complainant submitted that it is clear from the consistent approach taken by the Labour Court and WRC Adjudication Officers that the Respondent’s reliance on this approach is clearly misplaced. In this regard, the Complainant relied upon the Labour Court/WRC recommendations in the following cases, namely: St. Patrick’s College -v- IFUT[1], HSE West -v- A Worker[2], HSE Dublin Mid Leinster -v- A Worker[3], West/North West Hospital Group (HSE) -v- Irish Municipal, Public and Civil Trade Union[4] and A Home Support Worker -v- A Health Service[5].

The Complainant submits that having regard to the consistent approach of the Labour Court, it is clear that the Respondent’s refusal to place her on the appropriate pay grade for the work she actually performs is unsustainable for a number of reasons, namely:

·         There appears to be no real dispute that there is a disparity between the substance and form of the Complainant’s employment such that she is not being remunerated at the appropriate level for the duties she is required to perform.

·         Despite the obvious disparity between her actual duties and level of responsibility which are far beyond the Grade IV job specification, she has received no recognition in the form of appropriate grading.

·         Such is the level of the Complainant’s responsibility in her field that she can identify no other person performing the same duties as her within the Respondent IT. However, persons performing the same duties in other IT’s in her region are remunerated at Grade VI. Further, persons within the Respondent IT, who have similar payroll responsibilities to her – with payroll only being one aspect of her overall responsibilities – are remunerated at higher than Grade VI.

·         Successive Labour Court recommendations as outlined above have held that such a claim is neither a claim for promotion or a cost increasing claim and, therefore, not precluded by the Public Service Agreements. Indeed, in the St. Patrick’s College recommendation, the Labour Court held that those agreements “cannot mean that a worker such as this will be paid at a rate below the agreed and established rate for the work he performs”.

·         The Complainant’s claim is that she should be remunerated at the appropriate rate for the duties she is required to perform.

·         The Complainant has raised this issue with the Respondent and, despite the Respondent having engaged with her in this regard, no resolution of her position has been forthcoming.

The Complainant is seeking to be re-graded to an appropriate point on the Grade VI remuneration scale and given that she has been in her position and performing duties commensurate to Grade VI for nearly 10 years, since October 2008, it is submitted that she should be re-graded to the highest point on that salary scale.

CA-00016854-002 – Complaint under the Payment of Wages Act 1991

The Complainant submitted that the Respondent has made unlawful deductions from her wages contrary to Section 5 of the Payment of Wages Act 1991.

The Complainant submitted that in the event the Adjudication Officer is minded to recommend re-grading, she further contends that she should be entitled to an appropriate sum to reflect the difference between the relevant salary grades in the period between six months prior to the referral of the instant complaint to the date of determination of this complaint.

The Complainant submitted that her current remuneration is €44,328 per annum whereas, by re-grading her employment to take proper account of nearly 10 years employment at Grade VI, her salary would rise to €56,951. The Respondent has had the benefit of her work without having to remunerate same at the appropriate grade for several years and this gives rise to a clear unfairness on her.

It is therefore contended that, either:

(a) the Complainant’s re-grading should be recommended with retrospective effect to six months before the lodgement of the within complaint with a recommendation that the difference in pay be addressed retrospectively from this date; or

(b) The Adjudication Officer should consider the award of a lump sum of compensation to reflect the Complainant’s loss of income as a result of the Respondent’s failure to remunerate her at the appropriate grade.

CA-00016854-001 – Dispute under the Industrial Relations Act, 1969

The Respondent submits that the Complainant’s claim, in effect, is a claim for re-grading from her present grading within the IT. As a preliminary issue, the Respondent objects to this matter being dealt with pursuant to the provisions of the Industrial Relations Acts and submits that no jurisdiction lies with the Adjudication Officer having regard to the provisions of Section 13(2) of the Industrial Relations Act 1969 which provides as follows:

“Where a trade dispute (other than a dispute connected with the rates of pay of, hours or time of work of, or annual holidays of a body of workers) exists or is apprehended and involves workers within the meaning of the Principal Act, a party to this dispute may refer it to an Adjudication Officer”

The Respondent submits that in the instant case the claim pursuant to the Industrial Relations Acts is a claim for rates of pay for a “body of workers”. A body of workers is any group of workers greater than one and the mere fact that the Complainants in the instant cases[6] have submitted separate claims does not disestablish the fact that they are a group of workers and further it is submitted that the essence of the claim for re-grading impacts on a much wider group of workers, that is all workers employed by the Respondent who are subject to the agreed graded structure. In those circumstances, the Respondent requests, in the first instance, that the Adjudication Officer should reject the claim under the Industrial Relations Act on the basis that s/he has no jurisdiction in the matter.

Without prejudice to the foregoing objection, the Respondent submits that the claim pursuant to the Industrial Relations Act should be rejected in any event. The Respondent contends that the Complainant was offered and accepted a contract of employment which provided that she would be employed at Grade IV. The job description and grade are agreed nationally and the Respondent referred to the job description for this grade which was agreed with the Trade Unions and dated May, 2001. The Respondent submits that Garde IV applies to a “very wide range of areas of activities carried out in an Institute”. In the instant case the Complainant is suggesting that she should be re-graded as a Grade VI, which is clearly wholly inappropriate in circumstances where the job description of that grade provides, inter alia, that the job holder would be responsible for a fairly large staff of up to three levels and would be responsible for “most of the decisions” taken in the section.

The Respondent submits that it has been clearly explained to the Complainant in the instant case that there are discussions ongoing, at national level, for the purposes of seeking to have agreement reached at national level within the Department of Education and Skills and the relevant Trade Union in relation to a job evaluation scheme. The proposed scheme is being considered further to the implementation of a similar job evaluation scheme within the health service. It is not suggested by the Respondent that the job evaluation scheme will be introduced in the very short term, however, it is anticipated that the discussions, which have been ongoing for some time, will reach a conclusion in the not too distant future. The Complainant has been advised that the discussions are ongoing and has been assured that she will be eligible to apply once same is implemented.

The Respondent submits that there is no automatic entitlement for the Complainant to have her role re-graded or re-evaluated and each application must be considered on its merits. The Respondent submits that it would be wholly inappropriate for an Adjudication Officer to embark on what would be, in effect, a job evaluation of a small number of employees in one Institute of Technology which could, in effect, undermine a sensitive national industrial relations negotiation.

The Respondent submits, without prejudice to the preliminary objection set out above, that the appropriate recommendation of the Adjudication Officer in this instance is that the Complainant’s claim be rejected and she has been advised that when the job evaluation scheme is introduced that she make an application pursuant to same.

CA-00016854-002 – Complaint under the Payment of Wages Act 1991

The Respondent submitted that the claim under the Payment of Wages Act 1991 is unsustainable. This Act provides that an employer shall not make a deduction from the wages of an employee unless such a deduction is required or authorised by Statute or is required or authorised by virtue of a term of the employee’s contract or for other reasons expressly provided for in Section 5 of the legislation.

In the instant case there is no suggestion that the Complainant had any deductions made. She has been paid in accordance with her contractual entitlements and it is respectfully submitted that this is an abuse of process to seek, in effect, a re-grading by alleging that there has been a deduction.

The onus of proof in relation to the payment of wages lies squarely on the employee and it is submitted that there is no evidence whatsoever which would show that she has been subjected to an unlawful deduction within the meaning of the Payment of Wages Act 1991.

CA-00016854-001 – Dispute under the Industrial Relations Act, 1969

The Complainant is currently employed by the Respondent as an Assistant Staff Officer which is graded at Grade IV level within the Respondent’s grading structures.

The present dispute relates to a claim by the Complainant for re-grading from her existing Grade IV to Grade VI within the Respondent’s grading structure. The Complainant contends that although she is currently employed at Grade IV, the actual duties which she is required to perform as part of her job are more properly those of a Grade VI worker. The Respondent disputes the claim that the Complainant is doing work commensurate to Grade VI and contends that all of the duties which she performs in her role are encompassed within the job description for Grade IV.

Having regard to the foregoing, it is clear that there is a requirement for a job evaluation exercise to be conducted in order to establish whether or not the work the Complainant performs equates to that of a Grade VI level within the Respondent’s grade structure.

I note the Respondent’s position that there are currently discussions ongoing at national level between Trade Unions representing workers in the Higher Education sector and the Department of Education and Skills in relation to the establishment of a job evaluation scheme in relation to library, clerical, administrative and support grades in the Higher Education sector. These discussions arise on foot of provisions associated with the Public Service Stability Agreement 2013-2018.

It is clear, therefore, that the Respondent does not currently have recourse to any agreed structures or mechanisms to conduct such an evaluation exercise at this time.

I am satisfied that the appropriate body or forum within which to carry out the job evaluation exercise in the context of the present dispute are the agreed structures which would be established in accordance with the aforementioned job evaluation scheme.

Having regard to the process that is currently ongoing with a view to establishing the job evaluation scheme for the Higher Education section, I am of the view that it would be wholly inappropriate for me from an industrial relations perspective to inquire into the substantive matter in this dispute pending the conclusion of discussions between the relevant parties in relation to this matter. Furthermore, I am satisfied that to do so may have implications in the context of other disputes concerning the re-grading of a body of workers within the Respondent and the Higher Education sector, which would clearly fall outside of the jurisdiction conferred upon me, as an Adjudication Officer, under the provisions of Section 13(2) of the Industrial Relations Act, 1969.  

In the circumstances, I recommend that if and when the job evaluation scheme for the Higher Education sector is introduced, the Complainant’s role should be put forward for evaluation under that scheme.

CA-00016854-002 – Complaint under the Payment of Wages Act 1991

The Law

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

                “wages”, 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 the giving of such notice.”

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides: —

“(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.”

The Complainant has claimed that she is not being remunerated at the appropriate rate for the duties that she is required to perform and as a result she should be re-graded from a Grade IV to a Grade VI within the Respondent’s grading structure. In effect, she contends that the Adjudication Officer should make an order that she be re-graded to a pay grade appropriate to the work that she actually performs and that the difference in remuneration between the relevant salary grades which she was entitled to be paid during the cognisable period should be deemed as an unlawful deduction from her wages for the purpose of this complaint.

The instant claim was submitted to the Director General of the Workplace Relations Commission on 16th January, 2018 and therefore, only contraventions of the Act which may have occurred in the six-months preceding the referral, i.e. the period from 17th July, 2017 to 16th January, 2018 are cognisable for the purpose of obtaining redress.

The Labour Court has held in the case of Foroige -v- Kieran O’Connell[7] that: “In Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien [2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant ….. Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction”.

Therefore, the first issue that I must decide is whether the alleged unlawful deduction of wages claimed by the Complainant during the cognisable period was in fact properly payable to her.

In considering this matter, I note that the issue concerning the re-grading of the Complainant is the subject of an industrial relations dispute between parties. As I have already indicated above, I am satisfied that I am precluded by virtue of the provisions of Section 13(2) of the Industrial Relations Act 1969 from conducting any inquiry into the substantive nature of this dispute.

I am satisfied that the Complainant is currently employed by the Respondent under a contract of employment as a Grade IV Assistant Staff Officer and that she was being remunerated in accordance with the rates of pay appropriate to this Grade during the cognisable period. In the circumstances, I find that the Complainant is being paid the appropriate rate of pay in accordance with her existing contractual arrangements with the Respondent.

Accordingly, I find that the amount of unpaid wages claimed by the Complainant during the cognisable period in the context of the present complaint was not “properly payable” to her under the terms of her contract of employment. Accordingly, I find that no deduction of pay has taken place within the meaning of the Payment of Wages Act 1991 during the cognisable period relevant to this complaint.

CA-00016854-001 – Dispute under the Industrial Relations Act, 1969

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

I find that I do not have jurisdiction to inquire into the present dispute as it concerns the rates of pay of a body of workers within the meaning of Section 13(2) of the Industrial Relations Act 1969. Accordingly, I recommend that, if and when, the job evaluation scheme for the Higher Education sector is introduced, the Complainant’s role should be put forward for evaluation under that scheme.

CA-00016854-002 – Complaint under the Payment of Wages Act 1991

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

I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the Complainant’s claim is not well founded and must fail.

Industrial Relations Act 1969 – Section 13 – Re-grading – Job evaluation - No jurisdiction – Payment of Wages Act 1991 – Section 8 – Unlawful deduction – Complaint not well founded.