PWD203

The cognisable period in relation to this claim for the purpose of the Act is 23^rdJune 2018 to 22^ndDecember 2018.

Background

The Complainant commenced employment with the Council in July 2000 as a temporary Assistant Chemist. He was subsequently made permanent in 2003 in the position of Executive Environmental Officer. In late 2004 the Complainant was successful in a competition for the position of acting Senior Executive Scientist and was appointed to that position in 2005. The position was to fill a vacancy that arose from the secondment of an official to another County Council. This issue of payment of this particular acting allowance had been the subject of previous Labour Court Decisions. The issue before the Court on this occasion is whether the acting up allowance was properly payable during the cognisable period arising from this particular claim.

Complainant’s case

It is the Complainant’s case that he has continued to do the same duties at all time and therefore he should continue to receive the acting up allowance. It was his submission that the return of Senior Executive’s in other sections could not impact his allowance as he continued to carry out the same duties. The Complainant did not dispute that previous decisions of the Labour Court had stated that the allowance could cease for a number of reasons one being if the post was suppressed. The Complainant accepted that he got a letter dated 27^thJuly confirming that the Council had taken the decision to suppress the post with effect from the date of the letter and therefore the allowance would cease. The Complainant confirmed to the Court that he did not raise any grievance with the Council through their grievance procedure in relation to the suppression of the post instead he had taken a claim under the payment of wages to have the allowance re-instated

Respondent’s position

It is the Respondents position that there was no illegal deduction from the Complainant’s wages. The Complainant was simply reverted to his substantive grade and was paid appropriately for the position he occupied. It is the Respondents position that when the Complainant was reassigned to the Water services Department in 2013, he was reassigned at his substantive grade with the appropriate duties for that grade. While the letter of the 19^thJune 2014 reinstating the Acting allowance states that appropriate duties will be assigned this did not happen and he was left carrying out the duties of his substantive grade. It was the Respondent ‘s submission that while previously some concerns had arisen about whether the post had been suppressed correctly, they have since clarified that the suppression of the post was in order. It is their submission that the letter of 27^thJuly 2017 clearly indicates the Councils decision to suppress the post and therefore the acting allowance was not properly payable during the cognisable period.

The Applicable law

Section 1 of the Act states:

wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6) states;

• “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”.

The question for the Court is whether the acting allowance was properly payable to the Complainant during the relevant period. It is not in dispute between the parties that the Council issued a letter on the 27^thJuly 2017 advising the Complainant that they were suppressing the post and that the Complainant did not raise a grievance about the suppression of the post. It has previously been accepted by the parties that if the post was suppressed the allowance would cease. In this case as the post was suppressed prior to the cognisable period the acting allowance was not properly payable during the cognisable period and therefore the appeal must fail.

Conclusion

The Court finds that the acting allowance was not properly payable to the Complainant during the relevant period. The Decision of the Adjudication Officer is upheld.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
DC______________________
15 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.