ADJ-00009304

Complainant

Respondent

Anonymised Parties

A Security Compliance Officer

A Transport Authority

Representatives

Peter Glynn SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012150-001

27/06/2017

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

CA-00012150-002

27/06/2017

The complainant is employed by the respondent since 1987. The complainant was previously employed as a Car Park Supervisor. The complainant’s current role is that of a Security Compliance Officer. The complainant submitted one dispute and one complaint to the Workplace Relations Commission (WRC) on 27th June 2017. The dispute (CA-00012150-001) relates to the application of a red circling agreement to the complainant’s current role. The complaint (CA-00012150-002) relates to an allegation that the respondent made an unlawful deduction from the complainant’s salary. The parties furnished written submissions at the adjudication hearings. Further information was requested and was submitted to the WRC on 25th October 2018.

The complainant contends that the respondent has breached the terms of a red circling agreement following a restructuring of the Cark Parks in or around November 2011. The complainant stated that following his redeployment to his current role, he was treated less favourably than two colleagues, who despite their redeployment retained their terms and conditions of employment in line with the terms of the red circling agreement concluded at the Labour Relations Commission (as it then was). Specifically, the complainant stated that the red circle agreement at the time provided for the application of pay awards to all earnings, that legacy clerical pay scales would be maintained, the introduction of an Attendance Award Scheme and for a 36-hour working week. The complainant contends that he has been treated less favourably than his colleagues and has suffered significant financial losses as a result. The complainant is seeking a recommendation that the provisions of the red circling agreement be applied to him in full.

The respondent rejects the complainant’s position. The respondent stated that issues concerning the restructuring and the complainant’s redeployment within the organisation were the subject of correspondence between the parties and a letter from the respondent dated 10th November 2014 dealt with the issues raised by the complainant at the time. The respondent confirmed that the complainant accepted the contents of its letter and signed the contract of employment on 26th November 2014.

The respondent stated that notwithstanding its position in relation to the correspondence of November 2014, the complainant has not adhered to its internal grievance procedures prior to his referrals to the WRC. The respondent cited Labour Court Recommendation No: LCR21237 in support of its position that internal procedures should be exhausted prior to any referral to a 3rd party.

This matter was the subject of an adjudication hearing that took place on 18th October 2017. The adjudication hearing was adjourned on that day as internal procedures had not been utilised at that time. On 26th January 2018, the respondent emailed the complainant’s representative outlining the details of the correspondence of 10th November 2014 and in relation to the signed contract of 26th November 2014. Subsequently, following repeated requests from the WRC seeking an update as to the status of the dispute and complaint, a request was received from the complainant’s representative seeking a date for a reconvened adjudication hearing. A reconvened hearing took place on 9th October 2018.

It is clear from the email correspondence exchanged between the complainant and the respondent since the date of the first adjudication hearing and throughout 2018 that the complainant’s issues have not been resolved. However, despite the complainant’s assertions that procedures have been exhausted at local level, there is no evidence to suggest that the matter has been referred to the appropriate forum provided for within the Cost Recovery Programme.

In Labour Court Decision No: INT1014 Gregory Geoghegan T/A TAPS v A Worker the Court stated as follows:

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed”.

In all of the circumstances of this dispute, and in line with the Decision of the Labour Court in INT1014, I am of the view that the complainant should pursue his complaints through the agreed internal dispute resolution procedures provided for in the Cost Recovery Programme.

Having considered the submissions of both parties, I do not recommend in favour of the complainant.

The complainant stated that the respondent made an unlawful deduction from his red circled earnings. The complainant stated that following a restructuring of the Car Parks in 2011, he subsequently commenced in another role within the organisation. The complainant confirmed that the restructuring agreement provided that the red circled portion of his pay would remain the same until the rate of pay applicable to the new post reached his existing level of earnings.

The complainant stated that his earnings on commencement in the new post were made up of the salary applicable to the new post plus a red circled rate based on his previous earnings. The complainant contends that the respondent made an unlawful deduction from the red circled portion of his earnings in or around March 2017. The complainant stated that a 4.04% pay increase provided for in Labour Court Recommendation LCR20997 equated to €2918.42 which should have been added to his total salary. The complainant stated that the respondent miscalculated the value of the 4.04% by applying the increase to the salary of the new post only. The complainant stated that a figure of €2,058.00 was applied to the basic salary of the new post and that €2,058.00 was illegally deducted from the red circled portion of his earnings in contravention of the agreement reached at the Labour Relations Commission in 2011. The complainant stated that the respondent’s actions were at variance with the provisions of Section 5(1)(c) of the Payment of Wages Act, 1991.

The respondent stated that the agreement reached in the Labour Relations Commission in 2011 provided that if an employee moved to a role with a lower rate of pay, the rate of pay for the new role would apply and the remainder of the earnings would remain on a red circled basis. This would remain in place until the salary of the new post reached the previous level of earnings.

The respondent stated that in respect of the pay restoration, it applied the increase (4.04%) to the basic rate of pay of the new post as specifically applied to the complainant (€50,940.49) and reduced the red circled portion by the same amount which left the complainant in receipt of the same level of earnings as before. The respondent stated that it acted in line with the provisions of the agreement reached in the Labour Relations Commission in 2011 and in compliance with the specifics of the complainant’s terms and conditions of employment which he accepted in November 2014.

The respondent does not accept that it made an unlawful deduction from the complainant’s earnings.

In relation to this complaint I find as follows:

The complainant undertook a new role following a restructuring within the organisation. The specific details of the restructuring formed part of an agreement reached at the LRC in 2011. Matters relating to the complainant’s new role were the subject of discussion between the parties and the complainant received a Memo of Understanding and signed his new contract in November 2014.

In relation to the complainant’s rate of pay, it was agreed and appears to have been understood and accepted by all parties at the time that the complainant would remain on the same level of pay as applied to his previous post. Practically, this involved a basic rate of pay for the new post and a red circled portion to maintain his previous level of earnings. The LRC agreement is quite clear that the overall level of earnings will remain the same by way of the red circling arrangement.

Labour Court Recommendation No: LCR20997 provided for a pay increase of 4.04%. The complainant maintains that the increase should have been applied to his total earnings. The respondent applied the pay restoration/ increase to the salary applicable to his current post and reduced the red circled figure by the same amount resulting in no loss to the complainant.

The Applicable Law

Section 5 of the Payment of Wages Act, 1991

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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

I accept that the respondent acted in compliance with the provisions of the LRC Agreement and in line with the complainant’s terms and conditions of employment in increasing the basic pay and reducing the red circled portion of his earnings accordingly. I do not find that the reduction in the red circled portion of the complainant’s earnings constituted an illegal deduction within the meaning of the Act. In addition, and in compliance with Section 5(1)(b) of the Payment of Wages Act, 1991 the complainant’s contract of employment specified the financial position relating to the complainant’s new role which was also outlined in the memo of understanding provided to him prior to him accepting the contents of the documents and signing the contract of employment.

In all of the circumstances of this complaint, I do not find in favour of the complainant.

Having considered the submissions of both parties and all of the additional information submitted, I declare that the complaint is not well founded.