Complainant

Respondent

Anonymised Parties

An Officer

A Government Body

Representatives

Appeared in Person

Ms Aoife Carroll, B.L, instructed by the Chief State Solicitors Office.

Act

Complaint Reference No.

Date of Receipt

18 January, 2018

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

CA-00016936-001

On 18 January ,2018, the Complainant, an Officer since 1995, submitted a complaint regarding non-payment of several security allowances. He worked a 40-hour week for 850.56 gross per week.

The Complainant works as Petty Officer in a Government Body. He does not have a contract of employment and is paid security duties monthly.

During his work, he is required to carry out a number security duties per month which are then paid the subsequent month. There was a delay in receiving payment for these duties in 2017, where payment for duties undertaken in July were not paid until November 2017. The Complainant is the sole earner in his household.

The Complainant submitted that he was owed for 5 duties @47.59 euros gross. He lodged an internal complaint on January 9, 2018 which indicated that he had not been wronged as payment had not been denied and was being processed. He was unable to secure an identified pay date for these payments but suggested that it would follow during Mid-February. He received an apology. He met with a Senior Officer on 18 January, 2018, who explained that he had been unable to locate the person to activate payment centrally.

The Complainant requested that the internal complaint be elevated to a Higher Authority and on the day of hearing, this matter remained in train.

The Complainant outlined that he was due 237.95 euro in unpaid wages which should have been received on 15 November 2017. The Complainant was aggrieved at the lack of local progress on the payment and the lack of certainty on identification of a pay date. He outlined that this had a broader application than he alone on the staff. He made the complaint in the hope that this issue would be resolved quickly and would not re-occur. This was the third time that he had not been paid in 23 years.

Following the Respondent Submission and a question from the Adjudicator, the Complainant accepted that this was unlikely to re-occur given the IT Pay system now permitted payment of the duty payment.

The Complainant sought the application of Section 5(6) of the Act and contended that the non-payment of wages constituted a deduction in pay.

The Respondent denied the claim. Counsel for the Respondent outlined that a New Payroll system had been installed in the Government Department in April 2017 and confirmed that a delay had followed in respect of several identified duties arising from this development.

Since November 2017, all payroll had been managed through this centralised system. The Complainant has since received payment for his security duties. He was not rostered for October 2,2017.

The Respondent confirmed that all outstanding duties had now been paid and further briefing of relevant staff had been put in place to maximise the comprehension of the new payroll system. In addition, checks had been carried out to ensure that no further payments of security duties were outstanding.

The Respondent outlined the administrative process surrounding payment of security duties which are supplementary payments on basic pay. The sign off process is required to be completed by the 9th day of each month to allow Head Quarters to submit the payments on the 10th day. There is a clear” cut off” point.

The Respondent confirmed that security duties for 13,22 August, 15, 28 September were paid on November 1, 2017.These were delayed due to the New system for processing security payments. In October ,2017, the authorised Officer was tasked to take up an external posting which in turn caused a delay in approvals. His replacement came on board in November 2017.

The Respondent drew attention to an Administrative Notice advanced through the system in March 2018. This was a comprehensive document regarding time lines and approval stages pertaining to security duties.

The Respondent outlined a “look back” system, where 20% of payments at each rank are checked monthly for accuracy.

The Respondent submitted that the Complainants internal grievance was separate and distinct from the Adjudication process and was not properly before an Adjudication hearing. In addition, the Respondent argued that the WRC did not hold jurisdiction under Section 6 of the Act to make any recommendations in respect of the time frame in which payments to members of the Government Body ought to be paid.

The Internal grievance raised by the complainant had been addressed and the situation explained to him.

The Respondent concluded by submitting that the Complainant had been paid for the duties submitted on 24 January 2018. He had not worked on October 2, 2017.The Respondent contended that the claim should be dismissed as no deduction within the meaning of the Act had occurred. There was no application of Section 5(6) and there were no monies owed. The Respondent undertook an Audit of 100% of payments 2016 to 2017 and recorded full compliance with payments.

I have considered both submissions in this case. Both parties presented oral and written submissions.

Section 1 of the Payment of Wages Act defines an “employee “for the purposes of the Act.

employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be ……

I am satisfied that the complainant is covered by the definition of employee for the purposes of the Act. I note that the complainant did not have a contract of employment to hand. The Respondent outlined that employment was laid down by regulation. I still think it advisable that the complainant receives and understands the terms of this employment relationship. I would appreciate any help the Respondent could provide in that regard.

This issue arose as a by-product of a centralised pay system which resulted in a diminishing control to amend or override information by the local service. It is of note that the Complainant has worked for the service since 1995 and the three instances of problems with his receiving pay, one of which is before me, were consistent with the new pay roll administration system. It is not unusual in a migration to a centralised pay system that variances, glitches and delays take place. However, these problems were not anticipated and therefore no contingency was available for an early resolution. I asked the parties whether any thought had been given to front loading a payment to offset against these “glitches “. The Respondent clarified that as allowances were variable, there was no provision for front loading.

An employee pay is a vital component of the employment relationship and even more important in a sole earner household. I found that a lot of the complainant’s understandable frustration was due to his inability to secure a defined payment date for these allowances. I accept that the Respondent has rectified matters considerably going forward, however the expansive circular dated March 2018 would have had a lot more benefit if it was released a year earlier, to prepare the recipients of payroll with maximum information.

Both parties accepted that the security duties had now been paid and the IT and Information system fortified by “audit and look back” to withstand a repetition of this instance.

This brings me to the complaint at the centre of the case. The Complainant has contended that he experienced a deduction in his pay which brought the Respondent to a breach of the legislation. He also referred to this being a global issue within the respondent service and submitted some Union circulars to that effect.

He relied on Section 5(6) of the Act in that regard.

6) 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.

The Respondent disputed this and referred to the intricacies of the new pay roll system as grounding the delay in payment which was remedied in full on January 24, 2018. This date was accepted by both parties. I find that the parties may have benefitted from having some discussions around this payment date.

I accept that the Complainant endured an undue delay in receiving his proper payment for the security duties. His weekly basic pay was not affected. This delay was unsatisfactory and avoidable if communications around the transition to centralise pay had gone more smoothly. He made reasonable efforts to resolve the issue internally.

I must, however consider whether a breach of Section 5 of the Act has occurred?

The Oxford English Dictionary defines error as

“A measure of the estimated difference between the observed or calculated value of a quantity and its true value “

It goes on to define Computation as:

“The action of mathematical calculation ““The use of computers in research /study “

I have found that the complainant’s payments of security duties covering the period of the claim were caught up in an error of computation. This constitutes an exemption under the Act. As the deficiency in pay was attributable to an error of computation, I must find that the complaint Is not well founded.

Decision:

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

Section 6 of the Payment of Wages Act, 1991 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the claim is not well founded.

Payment of Wages