Complainant

Respondent

Anonymised Parties

Civil Servant

Government Department

Act

Complaint Reference No.

Date of Receipt

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

CA-00031909-001

30/10/2019

The Complainant is a civil servant who was promoted from Clerical Officer to Executive Officer in early 2018. The Complainant contends that he was placed on the incorrect point of the Executive Officer pay scale on promotion.

The Complainant submits as follows:

The Complainant was promoted to Executive Officer in the Civil Service effective from 8th April 2019.

Following this date, a circular was issued to all government departments by the Department of Public Expenditure and Reform (DPER)- Circular 08/2019 entitled “Revised arrangements applying to starting pay” which was effective from 1 January 2018. This circular set out revised rules regarding starting pay on promotion.

At the time of promotion the Complainant was on point 4 of the Clerical Officer scale with a shift allowance which was equivalent to an off-point between points 3 and 4 of the Executive Officer scale.

On 12 September 2019, the Complainant was informed by the National Shared Services Office, the organisation which instructs the Respondent on the calculation of his starting pay on promotion, that, in his case, as a Clerical Officer on point 4 of the standard salary scale in receipt of a shift allowance of 25%, he would remain on the same salary and would be placed on an off-point between points 3 and 4 of the Executive Officer scale in line with section 2, subsection 2.1 (ii) of Circular 08/2019 which provides that:

“An Officer who holds an allowance in the nature of pay at the time of promotion to a higher grade, including an allowance deriving from service as a Private Secretary, will enter the scale for the higher post at the more favourable of the following:

(i)                  Normal starting pay rules based on the officer’s existing pay, exclusive of the allowance; or

(ii)                Where the allowance has been held for at least one year, the officer’s existing pay plus allowance.”

He was further informed that he would be placed on scale in January 2020.

The Complainant maintains, however, that Examples 2 and 3 in Circular 08/2019 provide that an Executive Officer in receipt of an allowance should have their starting pay on promotion calculated as a combination of their basic pay plus allowance and should also benefit from section 1.2 of Circular 08/2019, which, if applied in his case, would see him placed on point 5 of the Executive Officer scale with effect from the date of his promotion.

Example 2 of Circular 08/2019, sets out the following scenario:

“An EO with an allowance of €10,000 progressed to the Normal Maximum of the EO PPC scale (€46,891) on 1st August 2016 [and has total pay of €56,891] is promoted to HEO on 2nd October 2018.

As the officer has been on the normal maximum for at least two years but not three years, paragraph 1.2 (ii) applies.”

Example 3 of Circular 08/2019, sets out the following scenario:

“An EO with an allowance of €10,000 progressed to LSI 1 of the EO PPC scale (€48,427) on 1st August 2016 [has total pay of €58,427] is promoted to HEO on 2nd October 2018.

As the officer has reached LSI 1 of the EO scale, paragraph 1.2 (iii) applies.”

Section 1 of the Circular 08/2019 provides as follows:

1.1   On promotion, an officer will be appointed at the minimum point of the new scale unless any of the conditions set out at 1.2 apply.

1.2    

(i)                  Where the officer’s current salary is above the minimum point to the new scale but below the normal maximum, the nearest point above the officer’s current salary plus one increment …

In addition, the Complainant submits that the Respondent failed to apply the provisions of Department of Public Enterprise and Reform Circular 07/2019 entitled “Application of additional increments awarded in relation to New Entrants under the Public Services Stability Agreement 2018-2020” to him. This circular, which applies to those who have joined the Civil Service post 2011 such as the Complainant, provides that new entrants would skip points 4 and 8 of the relevant salary scales. The Complainant submits that this provision should have been applied to him and that he should have been placed on point 6 of the Executive Officer salary scale with effect from the date of his promotion.

The Complainant has quantified his monetary loss as at the date of the hearing at €2,737.12.

The Respondent submits as follows:

The Complainant commenced employment as a Clerical Officer with the Respondent on 13th April 2015. He was placed on the first point of the Clerical Officer PPC (personal pension contribution) scale and his rate of pay was €409.06 per week. The Complainant progressed to point 2 of the scale on 13th April 2016 and his rate of pay increased to €467.14. On 13th April 2017, the Complainant progressed to point 3 of the Clerical Officer scale.

On 13th September 2016, the Complainant was appointed to a Clerical Officer position with another government department which carried an allowance equivalent to 25% of basic pay.

On 13th April 2018, the Complainant progressed to point 4 of the Clerical Officer scale and his pay increased to €493.54. Under the Lansdowne Road Agreement, this was subsequently increased to €503.46.

The Complainant was successful in the Executive Officer competition and was re-assigned to the Respondent on 7th March 2019. At that time, the Complainant was on point 4 of the Clerical Officer PPC scale and his total salary, including his allowance of 25%, was €32,838 per annum.

The Complainant’s pay on promotion was determined in line with Department of Public Expenditure and Reform Circular 08/2019 entitled “Revised arrangements applying to starting pay” which was effective from 1 January 2018.

As the Complainant had been in receipt of an allowance for more than one year, he remained on a total salary of €32,838 per annum (between point 3 and point 4 of the Executive Officer PPC scale) and moved on scale to point 4 on 25th January 2020 in line with section 2, subsection 2.1 (ii) of Circular 08/2019 which provides that:

“An Officer who holds an allowance in the nature of pay at the time of promotion to a higher grade, including an allowance deriving from service as a Private Secretary, will enter the scale for the higher post at the more favourable of the following:

(iii)               Normal starting pay rules based on the officer’s existing pay, exclusive of the allowance; or

(iv)               Where the allowance has been held for at least one year, the officer’s existing pay plus allowance.”

Response to specific points raised by the Complainant

Section 1.2 of Circular 08/2019 does not apply to the Complainant as the Complainant was in receipt of an allowance. The examples cited refer to officers who are on the maximum point of their scales.

In relation to the new entrant scale, the Complainant’s pay will be adjusted to skip point 4 of the Executive Officer in February 2020 in line with Department of Public Expenditure and Reform Circular 07/2019.

The Respondent submits that the Complainant is on the correct point of the scale and the terms of both Circular 07/2019 and 08/2019 have been correctly applied.

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the Payment of Wages Act, 1991. I am of view that I do not have the jurisdiction, under the Payment of Wages Act, 1991, to make any findings regarding the consistency or clarity of Department of Public Enterprise and Reform (DPER) Circular 08/2019.

Relevant Legislation

The relevant sections of the Payment of Wages Act are sections 5(1) which prohibits an employer from making a deduction from the wages of an employee unless certain conditions are fulfilled and section 5(6) which provides that the non-payment of wages which are properly payable to an employee by an employer shall be treated as a deduction unless it was due to a computational error. I have included the relevant sections of the Act below.

Section 5 (1) of the Payment of Wages Act, 1991 provides that –

“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.”

Section 5(6) of the Act provides that 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 employerfrom the wages of the employee on the occasion.”

Findings

The Complainant has raised a number of issues in his complaint, namely, that (i) the Respondent failed to take account of Examples 2 and 3 of DPER Circular 08/2019 when it set the Complainant’s rate pay on promotion; (ii) that the Respondent failed to apply the provisions of section 1.2 of DPER Circular 08/2019 when it set the Complainant’s rate of pay on promotion; and (iii) through its failure to take account of Examples 2 and 3 and the provisions of section 1.2 of DPER Circular 08/2019 when setting the Complainant’s rate of pay on promotion, the provisions of DPER Circular 07/2019 were not applied to the Complainant at the earliest possible time, thereby exacerbating his loss. I will now examine each of these issues in turn.

Examples 2 and 3 of DPER Circular 08/2019 and application of section 1.2 of Circular 08/2019

Example 2 of DPER Circular 08/2019, sets out the following scenario:

“An EO with an allowance of €10,000 progressed to the Normal Maximum of the EO PPC scale (€46,891) on 1st August 2016 [and has total pay of €56,891] is promoted to HEO on 2nd October 2018.

As the officer has been on the normal maximum for at least two years but not three years, paragraph 1.2 (ii) applies.”

Example 3 of DPER Circular 08/2019, sets out the following scenario:

“An EO with an allowance of €10,000 progressed to LSI 1 of the EO PPC scale (€48,427) on 1st August 2016 [has total pay of €58,427] is promoted to HEO on 2nd October 2018.

As the officer has reached LSI 1 of the EO scale, paragraph 1.2 (iii) applies.”

The rates of remuneration for civil servants are decided at a central level by the Department of Public Expenditure and Reform and are communicated, via circular, to individual line departments.

Where there is an issue about the appropriate payment to be made to an individual civil servant, which cannot be resolved at line department level, it is the normal practice for a line department to refer the matter to the Department of Public Expenditure and Reform (DPER) for guidance.

In the herein case, the Complainant raised a query with the Respondent relating to the calculation of his pay on promotion in accordance with Circular 08/2019.

On 13th September 2019, PeoplePoint (the providers of shared HR services to the Respondent) wrote to DPER seeking guidance as to how Circular 08/2019 was to be applied to the Complainant.

On 16th September 2019, DEPER replied as follows:

“The relevant paragraph is paragraph 2, paragraph 1 applies to officers who do not have an allowance.”

DPER’s response was copied, by PeoplePoint, to the Complainant on 16th September 2019.

On the same day the Complainant replied to PeoplePoint. He thanked it for the response and wrote “I am still curious as to why in example 3 of the circular the officer benefits from both paragraph 2 and paragraph 1 as opposed to just paragraph 2 in my case.   There doesn’t seem to be any explanation for this in the circular nor in the response from DPER. [The DPER staff member] seems to be of the understanding that it’s because the officer falls above the max of the scale, but there is no provision for this is in the circular, and in general it doesn’t make sense. The officer in example 3 is also benefitting from the value of their allowance for performing duties that no longer attract an allowance. Is there any way to shed light on this?”

Later on the same day, PeoplePoint replied to the Complainant as follows:

“We also queried this point with Policy when the circular was first released but we received the same response as listed below.   Officers whose current pay plus allowance falls between NMAX and LSI 1 are placed on-scale from the date of promotion whereas officers below NMAX remain on an off-point and an on-scale date is calculated.

When we queried why there was a difference the explanation we got back from policy was because an officer placed straight on LSI 1 must wait 6 years until they progress to LSI 2. So they get an initial benefit on the date of promotion but have to wait 6 years for their next increment.”

Later again on the same day, the Complainant replied as follows:

“I see, not that it makes sense but it’s an answer all the same.   It could be argued that everyone has to wait the 6 years eventually, but I’d probably get nowhere in the end anyway. Just one of those things I suppose. Again, thanks for taking time for all this.”

The Complainant then referred the matter to the WRC pursuant to the Payment of Wages Act, 1991.

Prior to the Adjudication Hearing, the Respondent emailed an official in the Department of Public Expenditure and Reform on 8th January 2020 to clarify the application of DPER Circular 08/2019 to the Complainant as follows:

“Can you please confirm that Appendix 1 – Example 2 and 3 of Circular 08/2019 related to officers with starting salary on promotion above NMAX of the scale only, and that the provisions of article 1.2 do not apply to officers with allowances below NMAX of the scale?”

The Department of Public Expenditure and Reform responded the same day as follows:

“You are correct, it is only the case where the salary plus allowance are above the normal max of the new scale that officers are advanced to the LSI 1 immediately (as in examples 1 and 2) and officers whose salary plus allowance is below the normal max are treated according to paragraph 2.1.

This means that officers who are above the normal max do not have to wait three years for an increment but officers below the normal max will receive an increment in less than twelve months.”

In all matters relating to pay of civil servants, line departments must act in accordance with DPER pay circulars. Where there are issues regarding the interpretation of such circulars, line departments (or PeoplePoint on their behalf) are obliged to seek guidance from DPER. Departments cannot act unilaterally in matters of pay.

In the herein case, it is clear that the Respondent (or PeoplePoint on its behalf) sought guidance from DPER on a number of different occasions in relation to the correct rate of pay to be applied to the Complainant on promotion from Clerical Officer to Executive Officer. I find that the Respondent acted in accordance with the guidance it received from DPER when setting the rate of pay to be applied to the Complainant on his promotion. Accordingly, I find that the element of the Complainant’s complaint relating to the application of DPER Circular 08/2019 to him is not well founded.

Application of DPER Circular 07/2019 to the Complainant

In light of the foregoing, I find that the provisions of Circular 07/2019 were also correctly applied to the Complainant given the interdependence between the application of the two circulars.

I find, therefore, that the Respondent has paid the Complainant the wages that were properly payable to him. Accordingly, I find that this complaint is not well founded.

I find that this complaint is not well founded.

Payment of wages – Civil Servant - promotion