ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00022886

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/11/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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:

This complaint refers to an alleged underpayment of wages by the Respondent. The Respondent denied it had underpaid the Complainant.

Summary of Complainant’s Case:

The Complainant, an Executive Scientist/Environmental Officer employed in a local authority submitted that the Respondent has underpaid him an acting up allowance of €12,395 per annum and where he maintained this allowance had not been paid from October 2017. The Complainant refers to the underpayment of wages for the 6 months in the period from the 22nd December 2018 to 25th June 2019.

By way of background the Complainant maintained that in January 2005 he successfully completed for and was appointed as an Acting Senior Executive Scientist/ Engineer. He maintained he was paid an allowance for the filling of this post. He submitted that the acting arrangement continued until 1st of March 2013 when the allowance was unilaterally ceased by the Respondent and the Complainant was transferred to another Department.

The Complainant maintained that he submitted a successful complaint to the Labour Court in 2014 following his transfer to a different department and where the Labour Court recommend the Complainant to be resubmitted to the vacant post of Senior Executive Engineer and that he was to be paid the acting allowance.

The Complainant advised that he again had to submit a complaint to the WRC and subsequently the Labour Court in 2018 with regards to the non-payment of the allowance. He advised that on the 1st October 2018 the Labour Court found that the acting allowance was properly payable to the Complainant and he was awarded the payment up to 4th October 2017.

The Complainant maintained that since his complaint to the Labour Court in 2018 the Respondent has again not paid him the acting allowance which he maintained he was entitled to. The Complainant submitted that he was not provided with a reason for the non-payment of the allowance and sought to have the matter resolved with the Respondent. However, as the Respondent refused to pay him the allowance he was seeking a re-establishment of the allowance on the basis the Labour Court had approved the payment up to October 2017. He therefore maintained that he had been underpaid in breach of the Payment of Wages Act and was seeking payment of his allowance since December 2018.

The Complainant advised that a previous complaint to the WRC for the payment up to the period December 2018 was rejected by the Adjudication Services and this claim was subject to a Labour Court Appeal and where an appeal hearing is awaited. He therefore maintained he was entitled to the allowance and was seeing it is paid to him for the period December 2018 to June 2019.

Summary of Respondent’s Case:

Preliminary Issue:

The Respondent submitted that the complaint under the Payment of Wages Act is out of time and was statute barred as it referred to a payment dating back to October 2017, and where the payment had been legitimately ceased since then. The Respondent contended that there is no basis for the claim. It argued that the Complainant has not been in receipt of the allowance from 4th October 2017.

Notwithstanding the Respondent contended that the Complainant had not been underpaid and maintained that the Complainant was seeking to be established in a more senior position. As such it contended the matter was an Industrial Relations dispute and not a valid complaint under the Payment of Wages legislation. The Respondent indicated the matter has been well rehearsed between the parties and already subject to a WRC hearing and where an appeal to the Labour Court is awaited.

The Respondent maintained that the Complainant was appointed to an acting up position on 17th January 2005 when an engineer had been seconded. It maintained that following receipt of a Department Circular in 2012, which impacts the contractual arrangements for staff, the Respondent was required to review the incidence of acting arrangements and to reduce the incidences of such appointments with immediate effect. Accordingly, in March 2013 the Complainant was reappointed to his substantive grade and the allowance ceased. In late November 2013 following a reorganisation the Complainant was reassigned to a new role at his substantive grade. The Respondent submitted that in November 2013 the Complainant raised a complaint to the Rights Commissioner Service regarding the cessation of his acting up allowance. Following an appeal of the Rights Commissioner recommendation to the Labour Court, the Labour Court determined that the Complainant was appointed to the acting position while the senior executive engineer was on secondment and accordingly the Court found that the Complainant at all times retained an entitlement to continue to fill the vacant post until the seconded employee returns to work, the vacancy is filled by open competition, or the post is suppressed. At that point the Respondent complied with the Labour Court’s recommendation and informed the Complainant that the acting arrangement would remain in place until one of the changes identified by the Court occurred. The acting up allowance continued to be paid.

The Respondent submitted that the seconded engineer returned to work in 2016 and the Complainant was informed that the acting arrangement would cease from 13th March 2016. The Complainant was advised he would assume his substantive post as Executive Environmental Officer. At this point the Complainant was seeking to be reassigned to a different department and the matter was subject of a further complaint under the Payment of Wages Act to the WRC Adjudication Service in 2018 which was subsequently appealed to the Labour Court. The Labour Court issued a determination on 1st October 2018 where the Court found that the acting allowance was properly payable to the Complainant during the relevant period which was 6th June 2017 up to 4th October 2017 on the basis “it is not clear to the court that the post was actually suppressed at that point in time. In these circumstances the court has to find that in terms of the relevant period before it the allowance was properly payable as the Respondent could not demonstrated that the duties carried out by the Complainant were not higher-level duties and could not demonstrate that the removal of the allowance follow the suppression of the post was properly sanctioned.”

The Respondent advised that following this decision the engineer who had returned from secondment has now retired and his post has now been suppressed. It advised that this suppression was in accordance with Circular Letter LG(P)08/12 where it was required to cease acting positions. Accordingly, once the engineer who held the substantive post had retired the role was not filled and the acting allowance ceased at that point. The Respondent maintained that as it has suppressed that position and the position has not been subsequently advertised or filled. As a consequence, the Respondent advised that it was no longer in a position to pay the acting up allowance as the acting up role no longer existed.

The Respondent therefore maintained that the Complainant was appointed to the right grade and was receiving the correct remuneration for the role of Executive Engineer. It clearly stated that the Senior Executive Engineer position had now been suppressed and that there was no entitlement for the Complainant to retain the allowance.

Findings and Conclusions:

Based on the evidence presented this complaint has its genesis from 2014 where the Respondent had stopped paying the Complainant an acting up allowance on three occasions since then. On two of these occasions the Complainant was successful in seeking the decision to be overturned by the Labour Court, most recently in October 2018 for the period up to October 2017. The Respondent has not paid the Complainant the allowance since October 2017 and the Complainant is now seeking the allowance to be paid for the period December 2018 to June 2019. The Complainant has previously brought a complaint of the matter to the WRC to be paid the allowance for the six-month period up to December 2018, but this claim was not upheld at the Adjudication hearing, and was subject to a Labour Court Appeal where an appeal hearing was awaited at the time of the hearing within. At the time of writing this decision the Labour Court had issued its findings to the Appeal (DeterminationNo.PWD203 dated 15th January 2020) rejecting the Complainant’s appeal and upholding the Adjudication Decision ref ADJ-18968.

As the post remains supressed at the time of the hearing within, and no circumstances have changed regarding the suppression of the post, I do not find the Complainant is entitled to the payment of the acting up allowance for the period December 2018 to June 2019.

Accordingly, I do not find the Respondent is in breach of Section 5 of the Payment of Wages Act 1991.

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.

As I do not find the complaint is well founded, I therefore do not uphold the complaint.

Dated:   5th March 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: