ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00018968

Complaint(s):

Date of Adjudication Hearing: 12/03/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This complaint refers to an alleged underpayment of wages by the Respondent. The Respondent denied it had underpaid the Complainant.

Summary of Complainant’s Case:

The Complainant, an Executive Scientist/Environmental Officer employed in a local authority submitted that the Respondent has underpaid him an acting up allowance of €12,395 per annum and where he maintained this allowance had not been paid from October 2017. The Complainant refers to the underpayment of wages for the 6 months in the period from the 28th of June 2018.

By way of background the Complainant maintained that in January 2005 he successfully completed for and was appointed as an Acting Senior Executive Scientist/ Engineer. He maintained he was paid an allowance for the filling of this post. He submitted that the acting arrangement continued until 1st of March 2013 when the allowance was unilaterally ceased by the Respondent and the Complainant was transferred to another Department.

The Complainant maintained that he submitted a successful complaint to the Labour Court in 2014 following his transfer to a different department and where the Labour Court recommend the Complainant to be resubmitted to the vacant post of Senior Executive Engineer and that he was to be paid the acting allowance.

The Complainant advised that he again had to submit a complaint to the WRC and subsequently the Labour Court in 2018 with regards to the non-payment of the allowance. He advised that on the 1st October 2018 the Labour Court found that the acting allowance was properly payable to the Complainant and he was awarded the payment up to 4th October 2017.

The Complainant maintained that since his complaint to the Labour Court in 2018 the Respondent has again not paid him the acting allowance which he maintained he was entitled to. The Complainant submitted that he was not provided with a reason for the non-payment of the allowance and sought to have the matter resolved with the Respondent. However, as the Respondent refused to pay him the allowance since October 2017 he was seeking a re-establishment of the allowance. He therefore maintained that he had been underpaid in breach of the Payment of Wages Act and was seeking payment of his allowance since June 2018.

Summary of Respondent’s Case:

Preliminary Issue:

The respondent submitted that the complaint under the Payment Of Wages Act is out of time as a complaint must be submitted within six months. The Respondent contended that the Complainant’s submission that the date of the deduction was 28th June 2018 is incorrect and there is no basis for this statement. It argued that the Complainant has not been in receipt of the allowance from 4th October 2017, and even with reasonable cause it contended the maximum time limit to submit a complaint to the WRC was not complied with. On that basis the respondent submitted that the Adjudication process must reject the Complainant’s claims as it has departed from the application of the time limits under the Payment of Wages Act, and for the Adjudication to consider the complaint it would be acting ultra vires to its authority.

The respondent further argued that the legal doctrine of res judicata is applicable in this case as the complainant had already submitted his complaint to the Labour Court. It therefore contended that the Complainant cannot now seek to reopen the same complaint determined upon by the Court and grounded on the same facts and arguments. The respondent referred to the juris prudence as set out in the case of Henderson v Henderson which has determined that party to litigation must make its whole case when the matter is before the Court for adjudication and not afterwards be permitted to reopen the matter to advance new grounds and new arguments which could have been advanced at the same time. Save for special cases, the plea of res judicata applies not only to issues actually decided but every point which might have been brought forward in the case. The respondent also sought to rely on Cunningham and Intel Ireland in which that judgement identified “all matters and issues arising in the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. This is a rule that is of benefit to both plaintiffs and defendants, to the courts themselves and thus to the public interest”. The respondent submitted that the complainant had already had the facts and issues contained within his present complaint adjudicated upon and he has been given full opportunity to present all details in relation to the same at previous WRC Adjudication and Labour Court hearings. On that basis the complainant submitted that the current complaint should be prohibited by the rule in Henderson v Henderson.

Substantive Issue

Without prejudice to the above preliminary matters the complainant responded to the complaint under the Payment of Wages Act. The Respondent denied the Complainant had been underpaid and maintained that the Complainant was seeking to be established in a more senior position and that the matter was an Industrial Relations dispute and not a valid complaint under the Payment of Wages legislation.

By way of background the Respondent maintained that the Complainant was appointed to an acting up position on 17th January 2005 when an engineer had been seconded. It maintained that following receipt of a Department Circular in 2012, which impacts the contractual arrangements for staff, the Respondent was required to review the incidence of acting arrangements and to reduce the incidences of such appointments with immediate effect. Accordingly, in March 2013 the Complainant was reappointed to his substantive grade and the allowance ceased. In late November 2013 following a reorganisation the Complainant was reassigned to a new role at his substantive grade. The Respondent submitted that in November 2013 the Complainant raised a complaint to the Rights Commissioner Service regarding the cessation of his acting up allowance. Following an appeal of the Rights Commissioner recommendation to the Labour Court, the Labour Court determined that the complainant was appointed to the acting position while the senior executive engineer was on secondment and accordingly the Court found 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. At that point the Respondent complied with the Labour Court’s recommendation and informed the Complainant that the acting arrangement would remain in place until one of the changes identified by the Court occurred. The acting up allowance continued to be paid.

The Respondent submitted that the seconded engineer returned to work in 2016 and the Complainant was informed that the acting arrangement would cease from 13th March 2016. The complainant was advised he would assume his substantive post as executive environmental officer. At this point the complainant was seeking to be reassigned to a different department and the matter was subject of a further complaint under the Payment of Wages Act to the WRC Adjudication Service in 2018 which was subsequently appealed to the Labour Court. The Labour Court issued a determination on 1st October 2018 where the Court found that the acting allowance was properly payable to the complainant during the relevant period which was 6th June 2017 up to 4th October 2017 on the basis “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 demonstrated that the duties carried out by the Complainant were not higher-level duties and could not demonstrate that the removal of the allowance follow the suppression of the post was properly sanctioned.”

The Respondent advised that following this decision the engineer who had returned from secondment has now retired and his post has now been suppressed. It advised that this suppression was in accordance with Circular Letter LG(P)08/12 where it was required to cease acting positions and once the engineer who held the substantive post had retired. The Respondent maintained it had suppressed that position and the position has not been subsequently advertised or filled. As a consequence, the Respondent advised that it was no longer in a position to pay the acting up allowance as the acting up role no longer existed.

The Respondent further submitted that the Complainant had been reassigned to the position of an Executive Scientist but that he retained the acting up allowance whilst the seconded engineer who had returned had not filled post of Senior Executive Engineer. It contended that the Complainant never actually performed the duties of a Senior Executive Engineer when he was realigned to the post of Executive Scientist/ Engineer. It therefore maintained that the Complainant was in the right grade and was receiving the right remuneration for the role of executive engineer. It clearly stated that the Senior Executive Engineer position had now been suppressed and that there was no entitlement for the Complainant to retain the allowance.

Findings and Conclusions:

Based on the evidence presented this complaint has its genesis from 2014 where the Respondent has stopped paying the Complainant an acting up allowance on three occasions since then. On two of these occasions the Complainant was successful in seeking the decision to be overturned by the Labour Court, most recently in October 2018 for the period up to October 2017. The Respondent has not paid the Complainant the allowance since October 2017 and the Complainant is now seeking redress for that from June 2018.

Findings on the Preliminary Issues

Section 41 of the Workplace Relations Act 2015 requires that I make a decision 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 make a decision under the relevant sections of that Act.

In accordance with S41(6) of the Workplace Relations Act 2015, an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

In accordance with S41(8) of the Act An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I note the Respondent maintains that most recent alleged contravention occurred on 4th October 2017, almost 15th months after the complaint within was submitted on 22nd December 2018. As such the Respondent argued the complaint was out of time. However, I must have regard to the fact that the Complainant had brought a related complaint to the Labour Court during 2018 which referred to the payment of the allowance up to 4th October 2017. The Court’s determination has an impact on the current situation and was issued on 4th October 2018. Part of that determination identified the Respondent failed to demonstrate the suppression of the post that had provided the Complainant with the acting up allowance was properly sanctioned and as such the Complainant was entitled to receive the acting up allowance for the period referred to in his then complaint. On that basis I am satisfied that the Complainant had a reasonable expectation to be in receipt of the acting up allowance from 4th October 2017 and up and until either the seconded employee returns to work, the vacancy is filled by open competition, or the post is suppressed. Specifically, the Labour Court determined the allowance should be paid up to October 2017 as the Respondent failed to demonstrate the suppression of the post was properly sanctioned.

As the matter was not determined by the Labour Court until October 2018 it is reasonable for the Complainant to have to wait until that decision was made before he could consider the legitimacy of any further claims for payment of the allowance. It was not until December 2018 and after the Labour Court determination of October 2018 that the Complainant realised the Respondent was not going to continue paying him the allowance from 4th October 2017. I am therefore satisfied under these circumstances that the complaint, which was submitted to the WRC on 22nd December 2018 is within time for any allowance the Complainant believed he was due to receive from 22nd June 2017, particularly if he believed the criteria to cease the payment as set out by the Labour Court determination of 1st October 2018 had not been met.

Having also considered the jurisprudence as set in the Henderson v Henderson case, I am not satisfied that the Complainant is again replaying the same complaint as contended by the Respondent. What the Complainant is submitting on this occasion is that the Respondent has yet again stopped his acting up allowance on the basis the criteria decided upon by the Labour Court, namely the seconded employee returns to work, the vacancy is filled by open competition, or the post is suppressed have been met since 4th October 2017, and as such he remains entitled to the acting up allowance. The complaint currently under consideration therefore refers to an allegation that the Respondent has again refused to pay an acting up allowance from 4th October 2017, and where this non-payment of wages from 22nd June 2018 is a breach of the Payment of Wages Act. It is clear to me that the Complainant is asserting his right to have the allowance paid on the basis the post has not been supressed.

Section 5 (1)(b) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless 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. The Complainant submitted he was entitled to receive the acting up allowance and was seeking payment of this allowance from 22nd June 2018.

I must therefore consider whether the Complainant was entitled to the payment he claimed was unlawfully deducted from him since then. In this regard I must refer to the October 2018 Labour Court determination and where it is clear this relies on the former Labour Court determination relating to the parties which identifies the Respondent must clearly demonstrate whether any of the conditions relating to the seconded employee returning to work, the vacancy been filled by an open competition, or whether the suppression of the post has been properly sanctioned, have been met

In this regard the Respondent has submitted the seconded employee has retired and with effect from March 2018 the post has been formally supressed. Having reviewed this evidence I am satisfied the engineer has retires, that vacancy has not been filled, and as it no longer exists it will not be advertised of filled. On that basis I am satisfied the role has now been formally supressed. As the role has ceased in March 2018 I find the duties associated with the acting up allowance are no longer valid. Accordingly, the basis for the Complainant receiving the acting up allowance have also been supressed since March 2018.

The last time the Complainant was in receipt of the allowance was 4th October 2017. As the role was supressed from March 2018 I do not find the Complainant is entitled to the payment of the acting up allowance from that point onwards. Accordingly, I do not find the Respondent is in breach of Section 5 of the Payment of Wages Act 1991 during the reference period claimed for by the Complainant (22nd June 2018 to 22nd December 2018).

Decision:

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

As I do not find the complaint is well founded I therefore do not uphold the complaint.

Dated:   06.08.2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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