Complainant

Respondent

Anonymised Parties

An Employment Facilitator

An Employability Service

Representatives

In person

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-00030609-001

02/09/2019

The complainant is employed by the respondent as an Employment Facilitator since 30th March 2015. The complaint was submitted to the Workplace Relations Commission (WRC) on 2nd September 2019 and relates to an alleged breach of the Payment of Wages Act, 1991.

The complainant stated that she is employed under a contract of employment with the respondent which is subject to a nine-point salary scale. The complainant stated that she did not receive her annual increment when it became due for payment on 31st January 2019.

The complainant outlined that she attempted to resolve this issue by writing to her Manager in January 2019 when her increment was not paid to her. The complainant stated that the Board of the Employability Service met to discuss the matter in February 2019 and a meeting was subsequently arranged with the Department of Employment Affairs and Social Protection (DEASP). A number of meetings with DEASP were cancelled and were eventually held in May 2019. The complainant stated that there was no positive decision from the meeting with DEASP and the complainant and a number of colleagues employed in other Employability Services sought political support in relation to the outstanding payment of the increments due. The complainant stated that ultimately, despite a number of meetings with a Senator and a TD in June and July 2019 and having been given the details of a Trade Union representative to assist, the issue was not resolved, and the complainant submitted her complaint to the WRC on 2nd September 2019.

The complainant stated that she received her annual increments in line with her contract of employment in 2016, 2017 and 2018 but in 2019 approval was withheld from DEASP in relation to the payment of increments. The complainant stated that employees of other Employability Services were paid their increments in 2019 on a discretionary basis yet the payment of her increment was refused despite her contractual entitlements.

The respondent accepts that the complainant has a contractual entitlement to the payment of the annual increment in line with the salary scale for the position. The respondent stated that in 2019, the budget assigned by the DEASP did not include approval for increments that were due for payment in 2019.

The respondent stated that it met with the Contracted Public Employment Services section of the DEASP on 14th May 2019 in an attempt to resolve the issue as it was aware of the complainant’s and others contractual entitlement to the payment of increments.

The respondent stated that it put forward numerous suggestions at the meeting in relation to paying the increments due such as using its underspend from 2018 or reassigning part of its 2019 budget and to reduce spending on items such advertising and travel to cover the payment of the increments. The respondent stated that the DEASP response was that it did not recognise the PayScale and none of the options suggested were possible. The respondent submits that the DEASP stated that the budget for 2019 had been agreed with the Department of Public Expenditure and Reform (DPER) and that the service should be provided by the Employability Service in line with the terms of the contract and within the agreed budget.

At the adjudication hearing the respondent stated that its budget is broken down into two sections; A and B. The respondent stated that the DEASP would not give permission for it to move funds between areas in order to pay the increments due despite the fact that some Employability Services had been given permission to pay increments for 2019 on an ad hoc basis.

Timing of the complaint

The complainant accepted that the complaint was submitted outside of the statutory six-month period for the referral of complaints to the WRC. In seeking an extension of time in line with the provisions of the legislation, the complainant submitted a chronology of events which occurred throughout 2019 and which caused the delay in submitting the complaint within the six-month time limit.

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska v Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

Having taken into account all of the information and evidence provided at the adjudication hearing and the documentation submitted, I am satisfied that the delay in referring the complaint to the WRC satisfies the test as set out in Labour Court Determination No: DWT0338. Accordingly, I grant the extension of time sought by the complainant. The complaint is therefore within time.

Substantive Issue

The Applicable Law

Section 5(6) of the Payment of Wages Act, 1991 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.

It is not disputed that the complainant is contractually entitled to be paid her annual increment. Despite the respondent’s evidence that the DEASP does not recognise the PayScale and in some circumstances gave permission for increments to be paid while others were refused their contractual entitlements without explanation, the fact remains that the non-payment of the increment which is properly payable to the complainant represents a breach of the legislation. Accordingly, I find that the complaint is well founded.

The complaint is well founded. The complainant should receive payment of the increment in question retrospective to the date it became due for payment.

Payment of Wages, Non-payment of annual increment

Complainant

Respondent

Anonymised Parties

An Employment Facilitator

An Employability Service

Representatives

In person

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-00030609-001

02/09/2019

The complainant is employed by the respondent as an Employment Facilitator since 30th March 2015. The complaint was submitted to the Workplace Relations Commission (WRC) on 2nd September 2019 and relates to an alleged breach of the Payment of Wages Act, 1991.

The complainant stated that she is employed under a contract of employment with the respondent which is subject to a nine-point salary scale. The complainant stated that she did not receive her annual increment when it became due for payment on 31st January 2019.

The complainant outlined that she attempted to resolve this issue by writing to her Manager in January 2019 when her increment was not paid to her. The complainant stated that the Board of the Employability Service met to discuss the matter in February 2019 and a meeting was subsequently arranged with the Department of Employment Affairs and Social Protection (DEASP). A number of meetings with DEASP were cancelled and were eventually held in May 2019. The complainant stated that there was no positive decision from the meeting with DEASP and the complainant and a number of colleagues employed in other Employability Services sought political support in relation to the outstanding payment of the increments due. The complainant stated that ultimately, despite a number of meetings with a Senator and a TD in June and July 2019 and having been given the details of a Trade Union representative to assist, the issue was not resolved, and the complainant submitted her complaint to the WRC on 2nd September 2019.

The complainant stated that she received her annual increments in line with her contract of employment in 2016, 2017 and 2018 but in 2019 approval was withheld from DEASP in relation to the payment of increments. The complainant stated that employees of other Employability Services were paid their increments in 2019 on a discretionary basis yet the payment of her increment was refused despite her contractual entitlements.

The respondent accepts that the complainant has a contractual entitlement to the payment of the annual increment in line with the salary scale for the position. The respondent stated that in 2019, the budget assigned by the DEASP did not include approval for increments that were due for payment in 2019.

The respondent stated that it met with the Contracted Public Employment Services section of the DEASP on 14th May 2019 in an attempt to resolve the issue as it was aware of the complainant’s and others contractual entitlement to the payment of increments.

The respondent stated that it put forward numerous suggestions at the meeting in relation to paying the increments due such as using its underspend from 2018 or reassigning part of its 2019 budget and to reduce spending on items such advertising and foreign travel to cover the payment of the increments. The respondent stated that the DEASP response was that it did not recognise the PayScale and none of the options suggested were possible. The respondent submits that the DEASP stated that the budget for 2019 had been agreed with the Department of Public Expenditure and Reform (DPER) and that the service should be provided by the Employability Service in line with the terms of the contract and within the agreed budget.

At the adjudication hearing the respondent stated that its budget is broken down into two sections; A and B. The respondent stated that the DEASP would not give permission for it to move funds between areas in order to pay the increments due despite the fact that some Employability Services had been given permission to pay increments for 2019 on an ad hoc basis.

Timing of the complaint

The complainant accepted that the complaint was submitted outside of the statutory six-month period for the referral of complaints to the WRC. In seeking an extension of time in line with the provisions of the legislation, the complainant submitted a chronology of events which occurred throughout 2019 and which caused the delay in submitting the complaint within the six-month time limit.

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska v Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

Having taken into account all of the information and evidence provided at the adjudication hearing and the documentation submitted, I am satisfied that the delay in referring the complaint to the WRC satisfies the test as set out in Labour Court Determination No: DWT0338. Accordingly, I grant the extension of time sought by the complainant. The complaint is therefore within time.

Substantive Issue

The Applicable Law

Section 5(6) of the Payment of Wages Act, 1991 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.

It is not disputed that the complainant is contractually entitled to be paid her annual increment. Despite the respondent’s evidence that the DEASP does not recognise the PayScale and in some circumstances gave permission for increments to be paid while others were refused their contractual entitlements without explanation, the fact remains that the non-payment of the increment which is properly payable to the complainant represents a breach of the legislation. Accordingly, I find that the complaint is well founded.

The complaint is well founded. The complainant should receive payment of the increment in question retrospective to the date it became due for payment.

Payment of Wages, Non-payment of annual increment