ADJ-00010200

Complainant

Respondent

Anonymised Parties

An Employee

A State Body

Representatives

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-00013288-001

24/08/2017

The Respondent has responsibility for national visitor sites throughout the country. The Complainant has been working for the Respondent since 1991, in the role of Head Guide on Skellig Michael.

The pay elements of the complaint, which are submitted under the Payment of Wages Act, 1991, relate to the alleged failure by the Respondent to (a) adequately compensate the Complainant for the time commitments involved in carrying out his required role, (b) properly calculate the Complainant’s reckonable service for pension purposes, (c) maintain the appropriate relativities with shore-based Head Guide in relation to the Complainant’s allowance as agreed as part of Conciliation in 2003 and (d) compensate the Complainant for losses incurred as a result of changing his base for out of season travel and subsistence calculations, from his home to Portmagee in County Kerry.

The Complainant raised some additional issues which did not have a pay element and which were therefore not considered as part of the complaint.

The Complainant made a detailed and comprehensive presentation of his complaint, both in terms of his written submission and his oral evidence on the day of the Hearing. The following is a brief summary of the issues raised: 

a)      Appropriate Compensation for time commitments to the Job:

The Complainant claims that he is not being adequately or appropriately compensated for the time requirements associated with the carrying out of his role as Head Guide on Skellig Michael. The Complainant stated that there is a full-time dimension to the role, while he is on the island, that is not recognised by management.

The Complainant identified a number of tasks and responsibilities which he undertakes which he believes demonstrates the full-time nature of his role. These include monitoring access to the island, monitoring sea conditions, regular communications with the boatmen ferrying visitors to/from the island and the monitoring of rockfalls and erosion.

The Complainant states that the role of Head Guide on the island is full-time during waking hours as he is, effectively, on duty throughout this time. Consequently, the Complainant refutes the Respondent’s contention that his working week is 39 hours in duration. 

b)      Calculation of Reckonable Service for Pension Purposes: 

Based on the previous point in relation to pay, the Complainant claims that management’s failure to adequately recognise the time commitment involved in his role is also impacting on his pension calculations.

According to the Complainant, management’s insistence on using 39 hours per week as his recognised hours is impacting negatively on the calculation of his reckonable service for pension. The Complainant states that by using the management figure of 39 hours, his reckonable service works out at 12.5 years 

According to the Complainant, each year of actual service on the island should be assessed as equivalent to a normal year's pensionable entitlement. In the Complainant's view this would more accurately reflect the reckonable service performed during his employment on the island over the past 31 years.

The Complainant also feels that, as a fair reflection of the unique conditions which obtain on the island, pensionable service should include, in addition to basic salary, the regular overtime, which is incurred in carrying out his duties, and his allowance as Head Guide.

c)       Calculation of Head Guide Allowance 

The Complainant stated that, as a result of a Conciliation agreement in 2003 it was agreed that,

as some compensation for the extra duties he had taken on, he was to be paid an allowance that was three times the normal Head Guide allowance applicable to onshore staff.

The Complainant stated that, at that time, the allowance amounted to €94 per week. However, the Complainant pointed out that in around 2007, the shore-based Head Guide allowance was increased to €65 per week. According to the Complainant, Management has refused to increase his allowance accordingly and he remains on €94 per week as opposed to €196 per week, if the appropriate relativities were maintained, as agreed in the Conciliation agreement of 2003.

d)      Losses due to Change of Base:

Finally, in relation to the pay elements of his complaint, the Complainant stated that, three years ago, without any consultation, management arbitrarily changed his base, for out of season travel and subsistence purposes, from his home to Portmagee in County Kerry.

According to the Complainant, as a result of this change, his subsistence has been underpaid by some €2000 over the past three years. The Complainant stated that this is in direct contravention of the practice in place for the previous 28 years.

Background:

The Respondent stated that the Complainant is employed, in the role of Head Guide, at their visitor site on Skellig Michael.

The Respondent stated that Head Guides work at individual visitor sites nationwide. It was stated that working patterns vary from, working on an all year-round basis at some sites, to working on a seasonal basis, which is the case on Skellig Michael, where the annual visitor season is from May to late September/early October.

According to the Respondent, Head Guides are mainly responsible for supervising Information Guides and organising their work. Head Guides are also responsible for performing Guide duties. While Head Guides operate at individual sites, the reporting structure requires that they report to a Supervisor Guide who is, generally, responsible for a number of sites.

The Respondent stated that the Complainant supervises two Information Guides, on any given week, and reports to a Supervisor Guide, who manages five visitor sites, including Skellig Michael.

Response to Substantive Claims:

a)      Appropriate Compensation for time commitments to the Job

The Respondent stated that there are five staff in total assigned to the Skellig Michael site. It was further stated that, at any one time, there are three staff working and living on the island. The work pattern is two weeks on (14 consecutive days) and one week off (seven consecutive days). Consequently, the Respondent stated that for one week in every three, there is no Head   Guide on the island. For their two weeks on, the staff are provided with accommodation on the island.

According to the Respondent, the Guide staff work alongside other staff on the island throughout the season, for example, maintenance staff, who work and stay on the island between Monday and Friday.

The Respondent stated that the standard working week is 39 hours excluding lunch breaks. As the Guides on Skellig Michael work 14 days in a 21-day cycle and are paid weekly throughout the season, the average working day during the 14 day period is 8.36 hours. The daily visitor period is approximately 10 am to 4:30 pm, depending on weather conditions allowing visitors access to the island.

According to Respondent, the duties required of the Head Guide and Guides, for the remainder of the working day include checking, and some light cleaning of, the steps leading to the monastic enclosure and removing litter from within the enclosure. The Head Guide and Guides are not required to take on any duties that are not included in the Job Description and Duties, which are supplied to all staff on a seasonal basis.

The Respondent stated that, outside of working hours, the Guide staff, living on the island, are not on call during this period of time. The Respondent further stated that, compared to the majority of Head Guides and Guides nationally throughout the service, the Guide staff on Skellig Michael have a relatively short and distinctly less busy/active part of the working day.

With regard to the Complainant’s specific complaint in this regard, the Respondent stated that the Complainant is not required to undertake any task that is not covered in his job description. In addition, the Respondent claims that the Complainant’s contractual working hours provide sufficient time to undertake his work requirements and over time does not arise.

In addition, the Respondent stated that, through direct experience and observance, they have found no basis for upholding or supporting the Complainant’s claim that he works in excess of his contracted working hours or his claim that he is on call during his time on the island.

b)      Calculation of Reckonable Service for Pension Purposes:

Based on the arguments set out in the previous section, in relation to his work pattern/hours, the Respondent refuted the Complainant’s claim in relation to the calculation of his reckonable service for pension purposes.

c)       Calculation of Head Guide Allowance:

The Respondent stated that pay rates for Information Guides, Head Guides and Supervisor Guides are set through national pay agreements. While the Information Guides and Supervisor Guides are on fixed pay scales, Head Guide pay consists of the Guide rate of pay plus an allowance for Head Guide supervisory and other specified responsibilities. The Head Guide allowance is not a fixed percentage of pay but reflects a relativity to the Supervisor pay scale as the position operates between the Guide and Supervisor Guide levels.

The Respondent stated that the current basic rate of pay for Guides is €672.34. The Head Guide Allowance is €65.46. The Respondent pointed out that, in addition, Guide staff get an allowance for working on Saturdays and a further premium payment for working on Sundays.

According to the Respondent, the Complainant is paid a fixed Personal to Holder Guide Allowance amounting to €94.21. The Respondent stated that this fixed rate arose as a result of an agreement which was reached with the Complainant during a Labour Relations Commission (LRC) Conciliation process in 2003/5.

The Respondent stated that, while the figure of €94.21 was calculated as three times The Head Guide allowance at that time, it was agreed as a fixed amount which was to be paid to the Complainant on a “Personal to Holder” basis. The Respondent further stated that this fixed amount was never intended to be linked to the Head Guide allowance. That reference was purely for calculation purposes at the time.

According to the Respondent, in setting, agreeing and maintaining the level of the Complainant’s Personal to Holder Head Guide allowance, management is obliged to give due regard to the pay differential between the Complainant’s pay and that of his supervisor. The Respondent stated that at the time the Complainant’s Personal to Holder rate was set, the differential with his Supervisor Guide was € 82.73. However, it was stated that, due to certain pay increases in the intervening period, which benefited lower pay rates compared to higher rates, the differential between the   Complainant’s pay and his Supervisor’s rate has reduced significantly, to € 55.56. According to the Respondent, the Complainant’s current basic pay plus his Personal to Holder allowance amounts to €766.55, which is in excess of the rate payable to a Supervisor Guide with seven years’ service.

In addition, the Respondent stated that, in considering the pay and conditions of their Head Guide on Skellig Michael, management must take into account the pay and conditions of the other Guides and the maintenance staff; the latter category of workers perform highly dangerous work by working and living on site throughout the season. Therefore, any change to the pay and conditions of one staff member may have serious repercussions for all the other staff on the island, who have not made complaints and are not party to the Complainant’s claims.

d)      Losses due to Change of Base:

With regard to the Complainant’s complaints in relation to the travel and subsistence allowances in respect of official travel outside normal seasonal work, the Respondent stated that arising from the recent Conciliation conference in the WRC, they have agreed to take an alternative approach to claim assessment. It is stated that this will take into account the unique circumstances involved in the Complainant’s situation and that these matters will be resolved separately to this claim.

The complaints before me for consideration are made under the Payment of Wages Act, 1991 and must, therefore, be adjudicated under that specific piece of legislation.

Section 1 (1) of the aforementioned Act defines wages, inter alia, as follows:

“Any sum 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, being the sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purpose of this definition:

                     i.            Any payment in respect of expenses incurred by the employee in carrying out his employment,

                   ii.            Any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as a compensation for loss of office,

                 iii.            Any payment referable to the employees redundancy,

                 iv.            Any payment to the employee otherwise than in his capacity as an employee,

                   v.            Any payment in kind or benefit in kind.”

Section 5 (1) of the Act precludes an employer from making certain deductions from the wages of an employee. This stipulation is further expanded on in Section 5 (6), which states that:

“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 probably 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 that occasion.”

While the Complainant’s complaints are clearly based on his dissatisfaction with the level of his salary and/or other aspects of his compensation, I am satisfied that all aspects of his remuneration relating to his contract of employment are being adhered to by the Respondent.

Consequently, I find no evidence, in the submissions made by the Complainant, which would suggest any failure on the part of the Respondent to pay the wages currently properly due and payable to the Complainant. Consequently, there is no evidence of a deduction being made by the Respondent which is in contravention of the terms of the Payment of Wages Act 1991.

Therefore, based on the above, I find that the Complainant’s complaints are not well founded.

However, notwithstanding the above finding and having carefully considered all the evidence adduced, in particular, the Complainant’s oral submissions at the Hearing, I am left in no doubt that he passionately believes in the validity of his complaints. I also note the cogent and comprehensive submissions made on behalf of the Respondent in response to those complaints.

Based on the evidence presented, my general assessment of the complaints made by the Complainant is that they are primarily of an Industrial Relations nature, many of which were dealt with through Conciliation in the LRC in 2003/5 and are the subject of more recent Conciliation which is being facilitated by the WRC.

Consequently, I would be strongly of the view that the Complainant’s best avenue to some resolution of his current complaints is in the continuation of that Conciliation process with the Respondent, who, in fairness, appear to be more than willing to engage in that process in an effort to resolve matters as amicably as possible in the IR context.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaints under the Payment of Wages Act 1991, are not well founded and, therefore, are rejected.