ADJ-00011073

Complainant

Respondent

Anonymised Parties

A County Council employee

A County Council

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014772-001

04/10/2017

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

CA-00014772-002

04/10/2017

The complainant has been employed by the respondent since 2000. His original position for the respondent was that of Assistant Executive Scientist. He subsequently became a Senior Executive Scientist on an acting basis in 2005 in the Environment Department while another employee was on secondment. The complainant was paid an acting allowance pertaining to the new role. The complainant subsequently referred a complaint to the Rights Commissioners Service in 2013 in relation to that employment. The complainant was then transferred to the Water Services Department while the matter was being appealed to the Labour Court. In Labour Court Appeal Decision No: AD1432 the Court in noted that the complainant;

“at all times retained an entitlement to continue to fill the vacant post until the seconded employee returns to work, the vacancy is filled by open competition or the post is suppressed.”

The complainant subsequently referred a complaint to the Workplace Relations Commission in 2017 in relation to the discontinuation of the acting up allowance that took place with effect from 14th March 2016 (ADJ Decision No -00003290 refers). In that decision the Adjudication Officer ordered the respondent to repay the allowance to the complainant with effect from 14th March 2016. The respondent retrospectively applied the allowance to the complainant from 14th March 2016 to the 6th June 2017.

The current complaint relates to the discontinuation of the acting up allowance that occurred after Adjudication Officer’s Decision No: ADJ-00003290 was issued. The complainant contends that the respondent made an unlawful deduction from his salary with effect from 7th June 2017. The respondent contends it acted in line with ADJ-00003290 by suppressing the post and returning the complainant to his substantive grade and rate of pay at that time.

The complainant confirmed that on foot of Labour Court Appeal Decision AD1432, he was reinstated to the post of Senior Executive Scientist and was informed by letter dated 19th June 2014 that he would be assigned duties appropriate to the higher grade within the Water Services Unit. The complainant contends that on that basis his substantive post became that of Senior Executive Scientist in that Unit. The complainant stated that once the seconded employee returned to work in March 2016, the respondent once again ceased the payment of the allowance despite the fact that the payment was now part of his substantive grade. The complainant referred the matter to Adjudication and confirmed that on foot of Adjudication Decision No: ADJ -00003290, the respondent retrospectively applied the acting up allowance from 14th March 2016 until 6th June 2017. The complainant confirmed that the respondent then wrote to him informing him that the post of Senior Executive Scientist in the Water Services Department was being suppressed and returned him to his substantive grade and rate of pay. The complainant contends that despite the respondent’s assertions, the role was never suppressed as he continues to carry out the same duties that he had carried out while being paid the allowance yet the allowance has been discontinued. The complainant contends that the discontinuation of the allowance is an unlawful deduction from his salary.

The respondent stated that the Adjudication Officer in ADJ-00003290 stated that:

“the respondent has the right to either allow the complainant to remain in the acting post or to fill this position by open competition or to suppress the post. In the meantime, I order the respondent to pay to the complainant the acting up allowance from 14th March 2016, the date on which he took up the specific role in the Water Services Department.”

The respondent confirmed that it retrospectively applied the allowance from the 14th March 2016 to the date of the Adjudication Officer’s Decision (6th June 2017) and acted appropriately thereafter by suppressing the post as provided for in the Adjudicator Officer’s Decision.

The respondent stated that there is no requirement for a Senior Executive Scientist within Water Services and that the appropriate grading for the role the complainant carries out is that of Executive Environmental Officer. The respondent further stated that a collective process has taken place with respect to positions within its Water Services and the position of Senior Executive Scientist was not an agreed position in that process.

The respondent contends that it acted in line with ADJ 0000-3290 and its business needs in suppressing the post within the Water Services Department and returning the complainant to his substantive grade and rate of pay.

In relation to this complaint I find as follows:

The complainant has been in receipt of an allowance in relation to a period of time spent acting up in the role of Senior Executive Scientist. The matter of the discontinuation of his allowance has already been the subject of a previous Adjudication hearing. Adjudication Officer Decision No: ADJ 0000-3290 retrospectively awarded the complainant payment of the allowance until the Respondent decided on how it wished to proceed. The respondent subsequently decided to suppress the post of Senior Executive Scientist in line with that Adjudication decision. The date of the cessation of the allowance was 7th June 2017.

I have given careful consideration to the submissions of both parties in this case. The allowance has been discontinued on the basis of the Respondent’s decision to suppress the post of Senior Executive Scientist within the Water Services Department. The complainant stated that he does not accept that the role has been suppressed and he remains doing the same job that he has always done.

The respondent, on the other hand stated, that there was never a substantive role of Senior Executive Scientist within Water Services and that the role as carried out by the complainant is appropriate to the complainant’s substantive grade.

The issue for decision in this complaint is whether the respondent made an unlawful deduction from the complainant’s salary in contravention of Section 5 of the Payment of Wages Act, 1991. On the basis of the evidence of the respondent that there is no requirement for a Senior Executive Scientist within Water Services and that the duties carried out by the complainant are appropriate to his substantive grade, I do not find that the discontinuation of the acting up allowance constituted an unlawful deduction within the meaning of the Act.

Having considered the submissions of both parties to this complaint and all of the evidence adduced, I declare that this complaint is not well founded.