PWD1833

The cognisable period in relation to this claim for the purpose of the Act is 5^thApril 2017 to 4^thOctober 2017. It is not disputed that the payment was made up to the 5^thJune 2017 therefore the period in question is 6^thJune 2017 until the 4^thOctober 2017.

Background

The Complainant commenced employment with the Council in July 2000 as a temporary Assistant Chemist. He was subsequently made permanent in 2003 in the position of Executive Environmental Officer. In late 2004 the Complainant was successful in a competition for the position of acting Senior Executive Scientist and was appointed to that position in 2005. The position was to fill a vacancy that arose from the secondment of an official to another County Council. Following a review of all acting positions in accordance with Circular LG (P) 08/12 the Respondent ceased most acting positions including the Complainants. The decision to cease the Complainants acting position at that time was appealed through the processes culminating in Labour Court Decision AD1432 which held that the Complainant was entitled to hold the post until the seconded employee returned, the vacancy was filled by open competition or the post was suppressed. The Respondent complied with the Labour Court decision and returned the acting allowance to the Complainant. In early 2016 the Complainant was put on notice that the employee he had replaced was returning to work and the acting allowance was again withdrawn on the 13^thof March 2016. The Complainant appealed this decision to the WRC and an Adjudication Officer decision issued in June 2017. The Adjudication Officer held that the complaint was well founded and ordered that he be paid the acting allowance noting that the Respondent has the right to either allow the Complainant to remain in the acting post, to fill it by open competition or to supress the post. The Respondent did not appeal that decision and paid the Complainant the acting allowance. On the 27^thJuly 2017 the Respondent advised the Complainant that the acting post was being suppressed with effect from the 6^thJune 2017 it then ceased the payment from that date. The parties are ad idem in relation to these facts.

Complainant's position

It is the Complainant’s case that when he was initially assigned to the Acting post he took on higher duties. These duties were changed to lower level duties in and around November 2013 when the allowance was first withdrawn. However, when he was re-assigned to the Water Services Department it is his position that he was put back on higher level duties. He has been carrying out the same duties since he was assigned to the Water Service Department in 2013. In his view the duties assigned to him in that department were at a higher level than his substantive grade. In particular he drew the Court’s attention to a letter dated 19^thJune 2014 which “re-instated the acting post with associated allowance” the letter went on to say “you will remain assigned to Water Services section where appropriate duties will be assigned to you in line with your position as Acting Senior Executive Scientist.As outlined in the Labour Court Decision No .AD 1432 your acting arrangement will remain in place until the seconded employee returns to work, the vacancy is filled by open competition or the post is supressed.”

The Council did remove the allowance when the seconded person returned but later reinstated same and the Complainant continued to do the same work during that period. On the 27^thJuly the Complainant received a letter advising that he would be paid the acting allowance up until the date of the Adjudication hearing i.e.6th June 2017. The letter stated that the Council had decided that there was no requirement for the position of Senior Executive Scientist in the Water Services Department and that the post was now suppressed. The letter went on to say that he would continue with his assignment as an Executive Environmental Officer in the Water department.

It is the Complainants position that the work he was required to do did not change and no evaluation of the duties attached to the post took place. He continued to hold the same post and carry out the same duties the only difference being the change in title and the stopping of the allowance. The Complainant’s reporting relationship continued as before. It is the Complainant’s position that the post has not been supressed as he continues to carry out the same functions as he has done since 2013 therefore the stopping of the payment of the allowance was an illegal deduction in contravention of the Act.

Respondent’s position

It is the Respondents position that there was no illegal deduction from the Complainant’s wages. The Complainant was simply reverted to his substantive grade and is currently being paid appropriately for the position he occupies. It is the Respondents position that when the Complainant was reassigned to the Water services Department in 2013 he was reassigned at his substantive grade with the appropriate duties for that grade. While the letter of the 19^thJune 2014 reinstating the Acting allowance states that appropriate duties will be assigned this did not happen and he was left carrying out the duties of his substantive grade.

The Respondent does not accept the Complainant’s contention that the duties he is carrying out are at a higher level. It is their contention that the duties are appropriate to the grade of Executive Environmental Officer the Complainant’s substantive grade. On the basis that no higher duties were assigned in 2014 it is the Respondents case that the suppression of the post did not involve any change in the duties that the Complainant was carrying out. Previous Labour Court and Adjudication Officer decisions had made it clear that the Respondent could suppress the post. The Council had complied with these Decisions and had come to the conclusion that it no longer required the higher post in the Water Services department and had therefore suppressed same.

The Applicable law

Section 1 of the Act states:

wages”, in relation to an employee, means any sums 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 without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes 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 compensation for loss of office,

(iii) any payment referable to the employee's 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 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6) states;

• “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 question for the Court is whether the acting allowance was properly payable to the Complainant during the relevant period. It is not in dispute between the parties that the Complainant has been carrying out the same duties since his move to the Water Services Department. However, the parties differ as to the level these duties are at. No evaluation of the duties appears to have been carried out at any stage and neither party provided any documentation supporting their position in relation to the level the duties are at. In the course of questioning from the Court the Representative for the Council noted that while a Managers Order would normally be issued in relation to returning the Complainant to his substantive grade that had not happened on this occasion. In addition, the Respondent could not confirm that the person who made the decision to suppress the post and the allowance attaching to same with effect from 6^thJune 2017 had the authority to do same therefore, it is not clear to the Court that the post was actually suppressed at that point in time. In these circumstances the Court has to find that in terms of the relevant period before it the allowance was properly payable as the Respondent could not demonstrate that the duties carried out by the Complainant were not higher- level duties and could not demonstrate that the removal of then allowance following the suppression of the post was properly sanctioned.

Conclusion

The Court finds that the acting allowance was properly payable to the Complainant during the relevant period. The Decision of the Adjudication Officer is set aside.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
1 October 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.