Complainant

Respondent

Anonymised Parties

A civil servant

A Government Department

Representatives

Mr. P. Mullan, Fόrvsa

Mr. Peter Leonard BL instructed by CSSO.

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-00016875-001

20/11/2017

The Complainant has been a civil servant since June 2003. He was promoted to his present level, EO, in August 2016. In 2010, due to performance issues the payment of an increment was stopped for a period of one year. Since that time the Complainants performance ratings have been “meetsexpectations” and in some areas “excels in most areas”. The Complainant believes this justifies the restoration of increments but to date this has not happened. When promoted the Complainant was placed on the first point of the EO salary scale, had his increments been restored he would have been placed on a higher point of the EO salary scale.

The Complainant is now seeking the full restoration of increments with effect from 2011 /2012 and the amendment of the subsequent starting point on the EO pay scale.

At the time of promotion in August 2016 the Complainant raised the issue of increments and starting point on the Executive Officer (EO) salary scale.

The Complainant was promoted in August 2016.

In 2010 the Complainant’s increments were stopped for one year as a step in the Civil Service Disciplinary Procedure, this was due to some performance difficulties i.e. his timekeeping was poor and he had many late arrivals to work.

Since this time his performance has been regarded as “meets expectations” and “excels in most areas”. The Complainant feels this justifies the restoration of increments. This has not happened. The Complainant maintains that he has lost six years of salary increases and resulting income.

When promoted the Complainant was placed on the first point of the Executive Officer (EO) Scale, a point far lower than the one he would have been placed on had he received the increments he feels were due to him.

When the Complainant queried this situation with PeoplePoint he was informed that they were following instruction issued by HR. No further explanation or rationale were offered to the Complainant.

The last correspondence received from HR was in 2011 advising him that increments were being withheld for a period of one year and that the situation would be reviewed at the end of this period.

That was 6 years ago, and the Complainant maintains that not only have his increments not been restored but no review has taken place.

In recent weeks,

the Complainant has met with the Personnel Officer who offered the restoration of increments for 2016 and 2017, this offer was rejected by the Complainant.

The Complainant has received no contact from HR either to inform him of a disciplinary issue or a review in line with the Civil Service Disciplinary Code.

The Complainant is now seeking the restoration of increments with effect from 2011/2012 and the subsequent starting point on the Executive Officer Scale.

There is no disagreement in the version of events offered by both the Complainant and the Respondent in the events leading to the disciplinary action i.e. the withholding of the increment.

Post 2011

The Complainant’s late attendance record continued to be an issue over the years from 2012 to 2016. The following table sets out the Complainant’s late infringements for the years 2011 to 2017 –

2011 – 49

2012 – 80

2013 – 79

2014 – 77

2015 – 56

2016 – 33

2017 – 5

2018 - 7 *             *As of 16th April 2018,

It should be noted that from end August 2016 to end August 2017 the Complainant was on his 1 year probation for substantive appointment to the EO grade.

HR wrote to him as part of general flexitime monitoring to bring his attention to above average late infringements on several occasions between September 2013 and January 2018 and his line manager had spoken to him in November 2014 about his late attendance.

Accordingly, as he continued to have an unacceptable late attendance record the Complainant was not awarded any further increments on the Clerical Officer scale. However, in terms of its general assessment of the Complainant’s role, management acknowledged that he was successfully performing his duties in other areas and accordingly when it came to his annual PMDS assessments during this period the Complainant never received an unsatisfactory classification, or a classification below level 3. It was also acknowledged that during this time the complainant served directly in the Minister’s Office or in the offices of Ministers for State. In these offices, it is acknowledged that he would remain working late on certain evenings.

However, again, in light of his failure to attend for work on time on a regular basis, the Complainant’s pay increments were not restored and the issue of his late attendance was raised with him by line managers. The Complainant, himself, did not raise the issue with HR again until November 2016 when he contacted People Point seeking to have his increments restored.

Promotion to Executive Officer

In 2016 Complainant successfully participated in an open competition for the position of Executive Officer. On 29th July 2016, the head of the Human Resources Division, in compliance with the requirements of the Public Appointments Service, signed off on the Complainant’s sick leave and performance for the purposes of his appointment/promotion to EO.

It is the case that at this time internal discussion took place in the HR Unit as to whether the Complainant could be approved to the Public Appointments Service for promotion given his late attendance record. However, it was decided that it would be wrong to prevent him being promoted as he was a good employee in other respects and therefore he was duly promoted, again with a view to continuing to monitor his punctuality. HR also decided that the Complainant should be retained within the Department rather than be passed on to another Department with an EO vacancy.

As a result of his promotion the Complainant moved to the Executive Officer pay scale starting at the first point of the scale. In late September 2017, the Complainant met with Head of HR. At his meeting, he sought the restoration of his increments as a Clerical Officer in full. At this meeting the Head of HR offered to look at increments from 2016 onward as this period showed a sustained improvement in his late attendance record. However, agreement could not be reached.

Proportionate Response

It is submitted that the Respondent’s decision to withhold increments from the Complainant was entirely proportionate, justified and appropriate in the circumstances. Indeed it is submitted that given the alarming continuous breaches of the Department’s attendance requirement which occurred, the sanction imposed was particularly measured.

In general terms the Respondent is fully entitled to impose a sanction wherein an employee continues to be in breach of a fundamental aspect of his contract of employment. Again it must be remembered that the Complainant was repeatedly advised by management that his late attendance record needed to improve, however, he failed to respond positively to those requests.

As can be seen from the Department’s willingness to promote the Complainant to the role of Executive Officer in 2016, the Respondent believed that in light to the Complainant’s good record in other aspects of his duties, it would be disproportionate to deny him the opportunity of promotion when he had successfully participated in an open competition.

However, the fact that the Respondent adopted a generous and broadminded approach in allowing the Complainant’s promotion, does not mean that the Respondent is precluded from imposing a fully justified sanction in the face of the Complainant’s repeated failure to attend work on time. Again from the contents of the table above it is the case that the level of late attendance on the Complainant’s part was at an alarming level.

The Law

The Payment of Wages Act 1991 (“the 1991 Act”) provides as follows at Section 5.1:

“5. — (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.”

It is the case that the Civil Service Disciplinary code is part of the Complainant’s contract of employment. It is also the case that Circular 14/2006: Civil Service Disciplinary Code   was revised in accordance with the Civil Service Regulation (Amendment) Act 2005 and therefore has a statutory basis. The application of the Civil Service Disciplinary code is also provided for under Statutory Instrument No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000. Accordingly, the Respondent was fully authorised to make a deduction from the Complainant’s salary by way of increment withdrawal in accordance with the Respondent’s Disciplinary Code.

The Courts have strongly maintained that the time limits provided under statutory employment legislation must be adhered to. The leading decision in this area remains that of O’Caoimh J in Bank of Scotland (Irl) Ltd v Employment Appeals Tribunal & Grady [2002] IEHC 119. While this case concerned, a claim made pursuant to the Unfair Dismissals Act 1977 the decision is equally applicable to other employment legislative provisions which similarly contain a six month time limit. The Learned Judge said:

“It is clear that the respondent does not have jurisdiction to determine a claim unless the claim is brought within the period prescribed by statute and this is the period of six months provided for in s. 8 of the Unfair Dismissals Act,1977 (as amended) or if the claim is not brought within the period of 12 months provided the tribunal is satisfied that exceptional circumstances prevented the giving of the notice within the period of six months. It is clear that the responded did not seek to address the alternative basis of jurisdiction referred to in s.8 (2) (b) of the Act. Accordingly, I am satisfied that unless it determines the matter as coming within this sub-section that the respondent does not have jurisdiction to determine the claim of the notice party unless it was brought within the relevant six month period.

It is clear that the date of “the relevant dismissal” in the instant case was the date on which the notice given by the claimant expired. This was to expire on 31st July, 2000. In computing the period of six months “beginning on the date of the relevant dismissal” one has to have regard to the provisions of s. 11 of the Interpretation Act,1937 which provides:

11 …. (h) Periods of time. . Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall… be deemed to be included in such period.”

Mr Justice O’Caoimh’s decision was most recently reaffirmed by McDermott J in UPC Communications Limited v EAT & Another[2017] IEHC 567. He said:

“This judgment was considered and applied by Ó Caoimh J. in   Bank of Scotland (Ireland) v. Employment Appeals Tribunal & Prisca Grady [2002] IEHC 119 , (Unreported, High Court, Ó Caoimh J., 15th July, 2002). Ó Caoimh J. held that the Tribunal did not have jurisdiction to determine a claim unless it was brought within the period prescribed by statute namely the period of six months provided under s. 8(2)(a) of the Unfair Dismissals Act 1977 (as amended) or within a period of twelve months under s.8(2)(b) provided the Tribunal was satisfied that exceptional circumstances prevented the giving of the notice within six months. The court was satisfied that unless the Tribunal determined that the claim was made within the statutory period it did not have jurisdiction to determine it.

In reaching that conclusion, the learned judge noted that the case was not one in which there was a conflict of evidence. The essential factual matrix was not in issue. On the undisputed facts in the case, the Tribunal did not have jurisdiction to proceed to hear the case. It was a condition precedent to the continuation of the proceedings before the Tribunal that the claim be initiated within the six month period thereby vesting jurisdiction in the Tribunal.

Accordingly, it is submitted that Complainant’s claim herein is confined to the six month period which occurred prior to the date on which the Complainant’s complaint form was lodged.

Conclusion

To conclude, the Respondent is fully entitled to insist that the Complainant complies with his contractual obligation to attend work on time.

In order to ensure the efficient running and managing a large Government Department, it is imperative that management can impose an appropriate sanction when employees are found to be in repeated breach of those contractual obligations.

The sanction which was imposed by the Respondent on the Complainant for his repeated late attendance record was proportionate, appropriate and fully justified.

However, despite these repeated infringements of his contractual obligations by the Complainant, the Respondent adopted a generous and broadminded approach towards the complainant, acknowledging his good performance in other areas of his work and therefore, were willing to allow his promotion to the role of Executive Officer to take place.

Accordingly, it is submitted, for the reasons set out above that the Complainant should not succeed in his claim.

The Respondent quite correctly has pointed to Section 6(4) of the Payment of Wages Act, 1991:

6(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.

This complaint was received by the Workplace Relations Commission on 20th November 2017. Under this legislation, I can only look at the six months’ period ending on 20th November 2017 i.e. 21st May 2017 to the 20th November 2017.

Looking at the nature of this complaint I have formed the opinion that a solution cannot be found under the Payment of Wages Act, 1991.

Under the Payment of Wages Act, 1991 the complaint fails.