Complainant

Respondent

Anonymised Parties

A civil Servant

A Government Department

Representatives

Self

HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012661-001

19/07/2017

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

CA-00012662-001

19/07/2017

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

CA-00012663-001

19/07/2017

Three complaints are involved:

CA – 00012661 – 001 – Complaint under the Terms of Employment (Information) Act, 1994.

CA – 00012662 – 001 – Complaint under the Payment of Wages Act, 1991.

CA – 00012663 – 001 – Complaint under the Payment of Wages Act, 1991.

The Complainant is a Civil Servant who entered the Civil Service on 18th March 1986.

On 22nd February 2017, the Complainant was promoted to the position of Executive Officer (EO) ICT Specialist, he was offered a new contract of employment by the Respondent HR Department dated 10th February 2017 which he signed on 20th February 2017.

This promotion entailed a transfer to a new government department

After two weeks in the new position the Complainant had still not received an increase to his salary as outlined in the contract of employment. An exchange of emails between the Complainant and the Respondent HR Department commenced on 7th March 2017 and initially it appeared that whatever problem existed would be rectified. On 20th March 2017, the Complainant again emailed the Respondent HR Department notifying them that the problem had not been resolved and he was still receiving his old salary.

On 23rd March 2017, the Respondent HR Department replied to the Complainant’s email confirming what must have been discussed that the starting pay that they had offered in the new contract was incorrect. The starting pay stated in the contract was approximately €3,014 more than the Complainant should have been offered.

The author of the email from the Respondent HR Department went to some efforts to explain what had happened and tried to explain how the new salary should have been calculated. An apology was also offered to the Complainant. This appears not to be acceptable and after some involvement from the Complainant’s union representative the matter was referred to the Workplace Relations Commission for adjudication.

At hearing the Complainant presented a booklet of papers that included the following exhibits:

1.       Contract signed by both parties

2.       Email to the Respondent HR Department – 07th March 2017

3.       Email to the Respondent HR Department – 20th March 2017

4.       Email to THE Respondent HR Department – 22nd March 2017

5.       Reply from Respondent HR Department – 23rd March 2017

6.       Conciliation and Arbitration Report 816, 966 and 1216

7.       Email from Complainant informing the Respondent HR Department that they were in breach of the terms and conditions of the contract. (21st April 2017).

8.       Email from Respondent HR Department referring to Circular 08/2017 and replying to previous questions raised by the Complainant – date 28th April 2017.

9.       3-month probationary review.

10.   6-month probationary review.

“The Complainant believes his complaint is about the lack of honesty, ethics, open transparent behaviour and lack of engagement by the Respondent in the way they have:

·         Ignored and failed to implement a legally binding contract signed by both parties

·         Failed to pay the agreed salary

·         Reduced his salary to lower than his salary as a clerical officer

·         Failed to respond to requests for implementation of the agreed salary – they just continued to ignore my emails.

·         Failed to correctly implement the crossover pension details, when once again without his knowledge/awareness/agreement began to deduct payments and now insist the Complainant make up the balance of back payments due to their error.

·         Refused to engage/ give notice prior to taking it upon themselves to alter the salary on a number of occasions without any prior engagement or notification to the Complainant”

The Complainant is also of the opinion that there has been a lack of dialogue or consultation and that the Respondent took it upon themselves to illegally breach his contract and change his salary without consultation.

The Complainant does not accept that this was a mistake, a legally binding contract has been signed by both parties.

Compliance with all terms and conditions of the contract have been adhered to by the Complainant, this would include undergoing quarterly probation reviews and attending upskilling training to perform his duties correctly.

Prior to promotion the Complainant was a long standing Clerical Officer who was due to move to the Higher Clerical Officer pay-scale. Also prior to promotion the Complainant turned down opportunities to apply for Executive Officer / Higher Executive Officer positions in his own pre-promotion department.

The Complainant would not have accepted a reduced salary / similar salary in a new position when several opportunities had presented themselves in his pre-promotion department.

The Complainant has found this situation to be very stressful for both himself and his family and requests the Adjudicator to “sanction and penalise xxxx for negligence by illegally breaching thiscontract, for failing in their duties, lack of honesty and engagement throughout the entire process”.

At no point was there an amended contract offered to the Complainant.

In emails dated 23rd March 2017 and 28th April 2017 the Respondent HR have tried to explain how a mistake was made in the contract offered to the Complainant on his promotion to EO ICT.

The following is taken from the email sent to the Complainant on 23rd March:

“As discussed, the starting pay that we offered you in your contract was incorrect, we offered you an “off-point” of €38,529.00 per annum on the EO [Modified] payscale advising you that you would move onto point 9 of the scale €38,760.00 of this scale on 16th April 2017.

This was incorrect as the calculations we used for this was based on promotion from an Interdepartmental or confined competition where you would be entitled to your current point of pay €35,515 + 2 increments on the promoted payscale.

Under the terms and conditions of General Council Report 816 (attached) paragraph 4 “it was agreed to recommend that serving civil servants who were successful in open competitions for higher posts would enter the new grade at the minimum of the scale or at their existing salary plus accrued increment”.

Copies of payscales were included in the email.

The above payscales are for civil servants recruited prior to April 1995 these payscales are applied to all civil servants who are members of the Pre-06 April 1995 pension scheme, as you were recruited into the civil service on 18/03/1986 this applies to you. The post April 1995 scales apply to staff making a personal pension contribution.

As you were on €35,515 you have been assimilated onto the EO Standard Scale on this point and as you on LSI 2 there is no accrued increment involved and you are assimilated onto the EO Scale, Assimilation involves a calculation to establish how long you have to serve on the “off point” before receiving the next point on the EO scale, and this also establishes your new incremental date. As your assignment is effective from 20th February after 56 days you will move onto the 7th point on the EO scale and you new increment date is 17th April.

I sincerely apologise for the error in issuing you a contract with the incorrect starting pay, this was an error. The revised starting Pay and Incremental progression, as explained in this letter, is the correct rate and is in line with XXXX Policy and the rules for Pay on Promotion from Open Competition and we must apply these corrections”.

At hearing the following was stated by the Respondent:

1.       It is most regrettable that an error occurred in the initial calculation of the Complainant’s pay and we apologise for this. Once brought to our intention we carefully considered all the facts, contacted the Complainant by email and provided a detailed explanation.

2.       At all times, we have kept the Complainant fully informed and where delays have occurred these were outside of our control. Our efforts in this regard also applied to our correspondence with the Complainant’s union representatives. We provided a full explanation and assured them that we corrected the error and correctly applied the terms of GC report 816. We do appreciate the Complainant’s position and in our attempts to be as helpful as possible we also offered to meet the Complainant on a number of occasions.

3.       We are satisfied we have not made any deductions that was not required or authorised as referred to in the Payment of Wages Act, 1991 “the Act”. In addition, the Complainant was never paid a rate higher than the correct rate and there was no loss of earnings or overpayment. Under the Act a claimant is required to clearly show where the employer made deductions that were not required or authorised and this is not the case here. Section 4 (3) in the “Statement of wages and deductions from wages” – “Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidently and in good faith”

4.       We have acknowledged and fully explained the error in this case and believe that as a result of a genuine administrative error it would not be appropriate to be expected to pay a higher rate of pay than that provided for in GC report 816.The provisions in this agreed GC report applies to all civil servants appointed from open competitions to position that would be a promotion. If we were not to apply this correctly where appropriate we would be knowingly treating staff differently and this wold not be acceptable.

5.       The Act also allows an employer to make deductions, e.g., overpayment in wages, and we would argue that this is another clear provision in the Act that would entitle an employer to take appropriate action in cases where errors occur.

6.       We believe that it would be fundamentally wrong for any employer to be compelled to have to operate on the basis that mistakes / errors would not be corrected.

It is regrettable that such an error was made in the first instance.

The Complainant was advised on more than one occasion that the Human Resources Department were available to meet with him to discuss the situation – this offer to meet does not appear to have been taken up by the Complainant.

In relation to the Payment of Wages Act, 1991 I believe the Respondent correctly points out that section 4(3) of the Act allows for the correction of errors and/or mistakes if they have been made because of a genuine clerical error and in good faith. I believe this to be the case in this instance.

The Terms of Employment (Information) Act, 1994 places a duty on all employers to provide each employee with a statement containing the particulars of employment, this is normally incorporated into a contract of employment.

The statement provided to the Complainant was incorrect in relation to the salary. No notification of the change to salary was provided to the Complainant. I believe the Respondent has breached section 5 of this Act;

Notification of Changes;                                                                                                              

Section 5 – (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3,4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

a.       1 month after the change takes effect, or

b.       Where the change is consequent on the employee being required to work outside the State for a period of more than one month, the time of the employee’s departure.

                       (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

CA – 00012662 – 001 – Complaint under the Payment of Wages Act, 1991.

CA – 00012663 – 001 – Complaint under the Payment of Wages Act, 1991.

There has been no breach of the Payment of Wages Act, 1991 therefore these two complaints fail.

CA – 00012661 – 001 – Complaint under the Terms of Employment (Information) Act, 1994.

The complaint under the Terms of Employment (Information) Act, 1994 is well found in as much as the Respondent failed to provide any written notification in relation to the change to pay.

Under Section 7 (2) (d) I award the Complainant a sum equivalent to four weeks’ pay.

Payment of Wages Act 1991; Terms of Employment (Information) Act, 1994; correction of errors in employment contracts.