Complainant

Respondent

Anonymised Parties

A Researcher/Analyst

A Health Service Organisation

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-00022809-001

23/10/2018

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

CA-00022815-001

23/10/2018

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

CA-00022818-001

23/10/2018

The Complainant commenced employment with the Respondent on 3 February 2003, as an Assistant Staff Officer Grade IV.

The Complainant was appointed to an Acting Staff Officer position in June 2005, a post she remained in until May 2008, before reverting to her substantive role of Grade IV.

The Complainant raised issues with management in relation to her grading, claiming that her role was not properly graded. The Complainant was advised that the only process available to deal with claims for regrading was the nationally agreed job evaluation scheme.

The Complainant applied in November 2016 to have her role evaluated under the terms of the job evaluation scheme. The Complainant’s application on that occasion was declined. However, she submitted a second application for regrading, which resulted in her role being regraded to Grade V with effect from 13 December 2018.

On 23 October 2018, the Complainant submitted a complaint to the Workplace Relations Commission, under the Payment of Wages Act, 1991.

According to the Complainant’s submission, she is seeking the right to equal pay/grade for like work. At the time she submitted her complaint to the WRC, the Complainant was working as a Research/Analyst, within the Respondent’s Department of Public Health, at Grade IV level. However, shortly after submitting her complaint, the Complainant was regraded to Grade V, which she currently holds. According to the Complainant, her counterparts in other Public Health divisions have grades ranging from Grade VI to Grade VIII, despite her contention that they do the same functional work as she does and that they frequently work collaboratively on projects together.

The Complainant also provided details of Research Analyst jobs, consisting of similar roles or the same type of activity as she performs, which, she contends, were advertised in 2017/2018, with grades ranging from Grade VI to Grade VIII.

In support of her contention that her post is not properly graded, the Complainant provided a detailed submission in relation to her progress and continuing professional development in her various roles since the commencement of her employment with the Respondent. The Complainant also presented a detailed account of her efforts over the years to have her case addressed both through the evaluation process and the grievance process.

According to the Complainant, the job evaluation process is not a suitable mechanism for dealing with pay and grade parity issues whilst other employees in the same division are doing the same job at higher pay grades. The Complainant submitted that job evaluation should only be used where there is no detailed job description/specification or where the job and responsibilities have changed sufficiently to warrant a regrading.

In conclusion, the Complainant submitted that, on the basis of her own assessment, she should be retrospectively upgraded to a Grade VI and then the job evaluation scheme should be used to determine whether the role should be at a higher grade.

Background:

It was submitted on behalf of the Respondent that recruitment of new promotional positions within the HSE is dealt with by the National Recruitment Service. All new and promotional posts must be recruited through an open and transparent recruitment process, which includes an application and interview process.

According to the Respondent, there is also a nationally agreed process whereby posts can be evaluated to check if they satisfy the criteria to be graded at a higher level. It was submitted that, in the event that a post is found to be at a higher level, the post is advertised through the national recruitment service and filled in accordance with the agreed process. However, it was also submitted that there is an exception to this rule whereby if a staff member has been in post for four years or more then they are automatically appointed to the higher grade post. It was submitted that it is the post that is evaluated and not the individual holding the post.

Response to the Complainant’s claim:

In response to the Complainant’s claim that she should be graded at a higher grade than that which she was appointed at, The Respondent submitted that the only methodology to do this within the HSE is either through an open competition or through the recognised national Job Evaluation Scheme (JES), which has been negotiated and agreed between the Respondent and the Trade Unions at a national level.

According to the Respondent, in accordance with the JES, the Complainant has been appointed as a Grade V. It is further submitted that the Complainant accepted the terms and conditions of this by signing a contract of employment.

The Respondent pointed out that while submitting her complaints to the WRC under the Payment of Wages Act, 1991, the Complainant offered no evidence that indicates where she believes the Respondent has breached that Act.

According to the Respondent, the Complainant was placed on the Grade V salary scale, on 13 December 2018, in accordance with the relevant rules on pay and promotion. Consequently, the Respondent submits that the Complainant has been paid in accordance with the grade for her role is graded at and in accordance with the rules governing the job evaluation scheme.

The Respondent submitted that wages are defined in the Payment of Wages Act as “sums payable to the employee by the employer in connection with his employment”. Referring to the case of Sullivan v the Department of Education [PW/2/1997], the Respondent noted that the EAT concluded that the word “payable” means “properly payable”. Consequently, the Respondent submitted that as the Complainant, in the within case, has been paid in accordance with the contract of employment and is properly paid, there is no breach of the 1991 Act.

Referring to the Complainant’s reference to a number of other roles, which she claims are graded differently to her role, despite they being the exact same role that she performs, the Respondent submitted that there are varying roles within their organisation and there are different payment structures in place for those roles, depending on the job. According to their submission, the Respondent does not accept that the roles given as examples by the Complainant are the same as the role she performs.

According to the Respondent, the Complainant’s role has been evaluated using the recognised nationally agreed process. It was further submitted that the result of this evaluation was that the Complainant’s role was graded at Grade V, which is the grade she is being paid at. However, the Respondent pointed out that if the Complainant believed that the role is not properly graded she can apply for the role to be evaluated again, once a period of two years has expired in accordance with the evaluation scheme.

Conclusion:

In conclusion, the Respondent submitted that the Complainant had offered no evidence of where there is a breach of the Payment of Wages Act 1991. In addition, the Respondent submitted that they do not accept that the comparators offered by the Complainant are carrying out the same role as she is.

According to the Respondent, the Complainant has had her role evaluated and is being paid in accordance with the outcome of that process. Consequently, it is submitted that the Complainant is properly paid and that the Respondent is not in breach of the 1991 Act.

Procedural Matter:

When submitting her initial complaint to the WRC, the Complainant uploaded three versions of the same complaint. On receipt, these versions were allocated the following specific complaint references: CA-00022809-001, CA-00022815-001 and CA-00022818-001.

As all three versions were identical, the complaint was investigated under specific complaint reference CA-00022809-001 and the second/third versions were withdrawn.

Substantative Complaint - CA-00022809-001:

Having carefully considered all of the evidence adduced and the respective submissions made by the parties, I can be no doubt as to the strength of the Complainant’s conviction that the grade currently attaching to her position is out of kilter with those held by colleagues and compatriots in other divisions or geographical areas within the Respondent’s organisation, in a context where she contends that they are carrying out similar/like work.

On the other hand, it is clear that the Respondent has well defined mechanisms/processes for a job evaluation and role grading, which has been agreed nationally with the Trade Unions and apply across the organisation. It is further noted that, as recently as December 2018, the Complainant’s current role was subjected to assessment as part of these processes and, as a result, was upgraded to Grade V.

However, notwithstanding the outcome of that recent regrading process, which took place after she submitted her complaint, the Complainant remains dissatisfied with the grade attaching to her current role and is still seeking redress under the Payment of Wages Act, as originally submitted.

Having carefully considered the submissions made by the Complainant, I can only conclude that submission of a complaint under the 1991 Act is misconceived. I am of the view that the Complainant’s complaint has more the hallmarks of an industrial relations issue than This a statutory rights matter.

Section 5 of the Payment of Wages Act sets out the provisions governing the application of payments to and deductions from the wages of an employee. In particular, Section 5 (6) states as follows:

“(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.”

On the basis that the Complainant is being paid in accordance with the terms of her current contract of employment, I find no evidence to suggest that the Respondent has made or is making any unlawful deductions from the Complainant’s wages contrary to the provisions of the Act as set out above.

On that basis, I can only conclude that the Respondent has no case to answer under the Payment of Wages Act and, therefore, I find that the Complainant’s claim in this regard is not well founded.

CA-00022809-001

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint is not well-founded and is, therefore, rejected.

CA-00022815-001/CA-00022818-001

As these complaints were a duplication of CA-00022809-001, they were withdrawn and, therefore, no decision issues.

Payment of Wages Act