ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027250

Parties:

Complaint:

Date of Adjudication Hearing: 05/08/2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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:

Preliminary Points

Respondent’s Position

1) Claim is misconceived

The Complainant stated she was not placed on the appropriate pay scale when she commenced employment on 1st November 2017. The failure to place someone on a particular pay scale (which is denied) does not constitute a breach of Sec 5 of the Payment of Wages Act, as there had been no deduction from wages. Therefore, the Workplace Relations Commission does not have jurisdiction to hear this case.

2) Time limit

Without prejudice to the above the Respondent stated that this claim is statute barred under Sec 6(4) of this Act, which means that an Adjudication Officer may not entertain a claim unless it is presented to the Commission within a period of six months beginning on the date of the contravention, this issue related to 1st November 2017 when her employment began. She also raised issues about her pay scale in August 2018 and May 2019. These dates are also outside the six-month time limit. Therefore, this claim is out of time.

Also, if the Adjudication Officer did decide that it was in time then he is confined to a period of time six months back from the presentation of the claim to the WRC which is 25th August 2019 to 24th February 2020.

Complainant’s Position

1) Claim misconceived

She stated that she was offered a position that she accepted with the Respondent Company. Her salary was not confirmed before she resigned her previous position as she understood that she would be placed on the first point of the scale and then an incremental credit assessment would take place to determine which point she should be on. However, she was placed on point 2. She reluctantly accepted this as she had left her previous position and she expected that her request to have an assessment would take care of her concerns. The Respondent refused to carry out this assessment and did so until she left in December 2019. This claim is not misconceived. It is clear and well got and should be allowed.

2) Time limit

She stated that she had just started this employment, she did not want to take a claim. She didn’t have another job. She believed that she had an entitlement to have an assessment carried out which would vindicate her position. However, she was refused on a continuous basis to ger this assessment. She is aware of time limits, but she is justified in seeking this underpayment.

Findings and Conclusions on Preliminary Points

I note that the Respondent has raised two preliminary points.

I find that should the Complainant succeed in addressing point 1 on the alleged misconception of this claim then and only then may the Adjudication Officer proceed to assess the merits of 2) time limits.

1) Claim misconceived

I find that the Complainant was offered a contract of employment which provided for her to be placed on point 2 of the salary scale. The contract stated, “ The salary for this job is commencing at the second point of the Administrator scale”.

I find that she accepted this contract, albeit reluctantly.

I find that the basic tenets of a contract was in position: - offer, acceptance, capacity (ability to do the job) and consideration (pay)

I find that she did not seek to amend the contract at the point of acceptance.

I find that the contract was implemented and the Respondent paid the rate of pay as per the contract which was the second point of the Administrator scale.

I find that no illegal deduction was made from that rate of pay.

I therefore find that no breach of Sec 5 of the Payment of Wages Act has occurred.

I find that the Complainant had an aspiration to be paid a higher rate of pay, however she received a contract of employment, which she states she reluctantly accepted and she was paid according to that contract.

2) Time limit

I find that the Complainant has not succeeded in overturning the first preliminary point, therefore I may not deal with the second one on time limits.

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.

For the above stated reasons, I have decided that there were no illegal deductions from her wages.

I have decided that this complaint is not well founded.

I have decided that this complaint fails.

Dated:   26th August 2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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