Complainant

Respondent

Anonymised Parties

A Public Servant

A Public Authority

Representatives

SIPTU

 Byrne Wallace, Solicitors

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-00035873-001

27/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00035873-002

27/04/2020

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

CA-00035873-003

27/04/2020

The complainant is employed by a public authority and has a substantive post at Grade 7. (Position A hereafter, for ease of reference). He has been in that role since 2012.

In 2016, he was assigned on a temporary basis to a senior role at a higher level (Grade 8) to cover the temporary assignment of the permanent holder of that post to a different role. (Position B).

In December 2016, the complainant received a further temporary assignment to a different senior grade also at grade 8 to cover the temporary absence of a colleague. (Position C).

In December 2017, the complainant reverted to Position B when the absent colleague returned to work. His temporary assignment to that position was ultimately valid until the end of 2019.

In summer 2019 the permanent holder of the role of Position B returned to that role.

The complainant was offered, and later accepted, another senior role (Position D) paid at a higher grade than his substantive role (and the same as Position B).

It was then discovered that this position (D) had not been properly approved and the complainant was therefore informed that he would revert to his substantive role (Position A) and at the lower salary and this was due to take effect from January 2020.

The title/designation of that role is important in the case and is in dispute between the parties.

The sequence of events is as set out above.

The dispute concerns position D as it is referred to above.

When the complainant accepted this position, he was given a ‘letter of comfort’ confirming the salary.

The complainant accepted the post on the basis that it would carry the title he now seeks.

In a letter from management to the senior leadership team on September 19th the designation sought by the complainant was the one used in that letter by the head of the service and in subsequent correspondence on January 10th.

In due course when he was advised that of the difficulty regarding the approval for the position he triggered the Grievance Procedure.

There were very significant delays in processing the matter and when an offer was made to restore the position it was made without the designation which the complainant had previously enjoyed, and which was of great professional and personal significance for him.

In response to the issue as to whether the role is administrative or operational the complainant says that here are elements of both.

When it was first offered to him the management of the service was then and remained for some time to judge by the correspondence which issued, happy that the nomenclature he seeks was applicable.

His complaint under the Payment of Wages Act arises from the fact that he had a valid contract of employment entitling him to payment on a continuing basis of the level of salary arising in respect of the Chief Officer position. When the position was taken from him this did not break his entitlement to payment under his contract.

There are three issues; one is a dispute referred under section 13 of the Industrial Relations Act 1969 and two others are complaints referred under section 41 of the Workplace Relations Act 2015 alleging breaches of section 5 of the Payment of Wages Act 1991.

All three matters relate to the same circumstances.

Turning to the nub of the matter, the offer of Position D was made in good faith to accommodate the complainant, having regard to the fact that he had been paid at the level of that grade for the three previous years and that he had valuable skills to offer in the proposed role.

At the time the position of Head of Human Resources was vacant, but it was filled in October 2019, and the complainant then reported to her.

It was she who discovered, following her appointment, that Position D had not been properly approved and the complainant was therefore informed that he would revert to his substantive role (Position A) and at the lower salary.

This was due to take effect from January 2020.

As a good-will gesture to him, the complainant was offered a grace period in January and February 2020 when he would be paid at the higher rate, but he declined to sign the papers that would have facilitated that good-will payment and therefore reverted to his substantive lower salary (Grade 7) with effect from January 2020.

He objected to this and in addition to lodging the complaints in this case he also lodged grievances through the respondent’s internal procedures.

There were a number of engagements with the complainant under these procedures which took longer than hoped, in part because of the pressure arising from the COVID-19 crisis.

The outcome of this was that, on February 5th, 2021 the complainant was offered Position D (or a version of it with a different title) again and at the higher salary. 

The complainant responded to that offer insisting that he has been offered the post with the specific nomenclature which is part of the subject of the case under the Industrial Relations Act (below). 

The respondent wrote to the complainant confirming that the role offered was an administrative post and (by implication) not a post to which the title or benefits the complainant sought could be applied and that it was the only post that respondent could offer the complainant.

In respect of complaint CA-00035873-002, the Industrial Relations Actcomplaint, the complainant has sought a recommendation that he be awarded the grade with the specific disputed nomenclature rather than that which applies to a general administrative post.

While there is no difference in salary between the two posts, one is an operational role and is not an administrative role.

Therefore, the complainant cannot be given an operational title, and benefits relating to an operational role, while carrying out an administrative position.

A suggestion made in the complainant’s submission to assign him a specific role that would allow him to retain the title he seeks is not possible as that position is currently filled by another person. 

 In respect of the complaints under the Payment of Wages Act 1991, (CA-00035873-001 and CA-0005873-003) the two complaints are identical.

The pay periods that occurred between the date on which the complainant was reverted (for pay purposes) to his substantive post and the date of lodgment of the complaint were set out in detail and the total amount in scope for these complaints is €3974.00. (Detail supplied)

On the WRC complaint form the complainant has asserted that he is claiming for “ongoing losses”.

Neither the Workplace Relations Act 2015 nor the Payment of Wages Act 1991confer jurisdiction on the WRC to make awards in respect of “ongoing losses” and the jurisdiction of the WRC is limited to complaints in respect of alleged contraventions that have occurred prior to the submission of the complaint.

There was no contravention of the Payment of Wages Act 1991 in respect of the complainant.

During the four months that are in scope for this complaint, the complainant received the amount of pay that was properly payable to him.

The complainant relies on the offer and acceptance of the higher post during 2019.

In the common law it is the case that, once the normal criteria for the creation of a contract exist (offer, acceptance, consideration and intention to create legal relations) then a contract will exist.

If a contract of employment exists, then the wages that are properly payable to the employee are the wages agreed in that contract. If the wages that are properly payable are not paid then (subject to certain exceptions that are not relevant to this case) the amount of underpayment is a “deduction” for the purposes of the Payment of Wages Act 1991.

However, in the case of public servants, the common law position in respect of contracts of employment has been amended by statute.

Section 16A of the Ministers and Secretaries (Amendment) Act 2011 (“the Act of 2011”) was inserted by section 12 of the Financial Emergency Measures in the Public Interest Act 2015 (“FEMPI 2015”). Section 16A is headed “control of terms and conditions of public servants”.

Section 16A provides for an automatic amendment of the contract of employment of a public servant in certain circumstances.

Section 16A (9) provides that “this section applies to a term or condition agreed after the commencement of section 12 of” FEMPI 2015. The Financial Emergency Measures in the Public Interest Act 2015 (Commencement) Order 2015 appointed 30 November 2015 as the day on which section 12 of FEMPI 2015 (and other sections) came into effect.

In respect of the service in which the complainant works, the approval of the Minister for Public Expenditure and Reform is conditional on (among other things) approval by the ‘parent’ Department for the creation of roles.

The purported contract between the complainant and the respondent was for a post that was not approved.

Further to the operation of section 16A of the Act of 2011 that purported contract was ineffective.

The effective contract is the complainant’s substantive contract.

Therefore, the wages properly payable to him (within the meaning of the Payment of Wages Act 1991) are the wages payable on the scale that applied to that post. In paying the complainant on the approved scale for his substantive post, the respondent did not contravene the Payment of Wages Act 1991.

Without prejudice to the legal position of the respondent in respect of the Payment of Wages Actcomplaint, it is committed to finding a resolution of the industrial relations dispute.

Such a resolution could include facilitating the complainant to receive a retrospective payment to bring him up to the higher grade salary for the period January 2020 to date.

However, to render such a resolution lawful it would require the necessary approvals to be granted.

Such a resolution would be conditional on the complainant accepting the role at the grade that has been offered to him.

It is very clear that the core grievance in this case concerns the title of the post to which the complainant was initially appointed in May 2019.

As outlined above, it emerged that this post had not been properly sanctioned in line with public service rules and the complainant was told that he would revert to his substantive post in January 2020, although there was a deferral of the reduction in his salary for two months as a good will gesture.

in February it was confirmed that there was no further funding for the position and that arrangement ended.

He raised a grievance under the respondent’s procedures which took a long time to make any progress, but in February 2021 the complainant was again offered the position he had relinquished just a year or so earlier, but this time without the designation ‘Chief Officer’.  

 (Adjudicator’s note; to use the full title of the position would identify the respondent so I propose to refer to it as ‘Chief Officer’. In fact, these are the words in the actual nomenclature but there is a third, qualifying word between the two which identifies the respondent’s business and is therefore omitted).

The respondent’s position is simple; it is that to carry the title ‘Chief Officer’ a person must be in an operational as opposed to an administrative role. The complainant disputes that the position is purely administrative, but it seems to be overwhelmingly so.

The complainant’s submission that he might be engaged in an operational role related to exceptional circumstances.

What is less clear is why it should be the case (i.e. that a person must be in an operational as opposed to an administrative role). The respondent made no submission on the point, beyond repeating several times that it could not do so or give the complainant a title that does not relate to his role.

This position is especially weakened by the fact that throughout the period when the complainant occupied the post (then unapproved) in 2019 he was addressed as ‘Chief Officer’ and in one letter from the National Director of the service he referred to the position as the ‘Chief Officer’ post the complainant was holding.

Somewhat ironically, in the correspondence communicating the termination of the arrangement in February 2020 there is a reference to the fact that there was no ‘approval, sanction or funding for the Chief Officer post you were holding’.

In 2021 when the position was made available again this designation had disappeared.

It might be said that it is open to the respondent to offer a position on whatever basis and with whatever title it chooses, and it is a matter for any interested person to then accept it or otherwise as they choose, if, for example they do not like the title of the post.

However, the parties have agreed to submit to independent adjudication on the point. In trying to elaborate criteria for making such an adjudication the first question must be the following.

If the only argument being advanced against granting the complainant his preferred title is something that was not only not an issue for the eight months or some that he occupied it in 2019, why has it become so now?

The complainant did not simply assume the designation unto himself; it was used by the National Director and the HR Manager.

And purely as a matter of language there is no reason that the title in question should be confined to operational grades; it does not of itself in any exclusive way relate to operations.

There is no end of examples of job titles in the general economy that range from one end of the spectrum of intelligibility to the other.

The respondent’s position may owe something to a certain literary resonance that words will mean what it intends them to mean. But of course, this is a principle that, in this context can cut both ways. If they can mean what the respondent intends them to mean, they can mean something else also.

The claim to some form of linguistic precision is also diminished by the fact (as fa as I am aware) that the respondent employs more than one ‘Chief’ officer.

The complainant’s claims to the title may not be very much more persuasive.

He relied on his ‘professional identity and recognition’ and his record in the service. He says that he still may be required to respond in an emergency. He similarly argues that being in an administrative grade would remove him from a pay determination process and have financial implications for him.

The complainant has a simple remedy for all these which is not to accept the position on the terms offered.

Following the hearing the parties were facilitated with a degree of time to have talks which might have resolved the matter (and I expected they would) but unfortunately no agreement resulted.

While a person not in attendance should be reluctant to form any judgement as to why they failed looking at the issues that separate the parties as set out above it is hard not to understand why some agreement was not possible

On balance, I conclude that the complainant has the slightly better end of the argument based, firstly, on the poverty of the respondent’s only effort to justify its position, which seems to have been developed only after the complainant had a spell in the position and secondly on the fact that no-one, up to and including the Director of the service seemed at all troubled by the operational /administrative dichotomy and seemed content to use the designation the complainant now seeks.

Accordingly, on the basis that the balance of the equitable argument lies with the complainant I am going to recommend that he be designated with the ‘Chief Officer’ function (amended obviously to reflect the actual use of the term in the service).

While other aspects of the matter under the Industrial Relations Act remain to be dealt with (and are below) I turn to the complaint under the Payment of Wages Act briefly.

I find that the temporary contract was brought to a conclusion lawfully for the reasons that are set out in the respondent’s submission. The post was not validly established within the legal framework required.

Once the contract was terminated no further payment arises under the Payment of Wages Act.

That brings the discussion back to the Industrial Relations Act.

It is quite unacceptable that the process of offering a person a post that carried significant responsibility, and indeed prestige could have been offered to a person without the necessary approval.

The grievance submitted by the complainant eventually, and after a very long time brought a partial resolution of the matter in that it restored him to the position he had previously occupied (admittedly with the disputed new title).

However, it left unresolved the loss of wages from a general industrial relations point of view, as well as the impact on the complainant of such a disappointment, for which, in the very generalised jurisdiction of the Industrial Relations Act he is also entitled to a remedy.

I make my recommendation below in an effort to resolve all aspects of the matter and so that the parties can move on with their very important work for the community at large.

Decision

For the reasons set out above, complaints CA-00035873-001 and 002 are not well founded.

Recommendation.

Regarding complaint CA-00035873-002 I recommend that, while noting that the position is primarily an administrative post, the position be designated as ‘Chief [insert actual word] Officer on a personal basis to the worker concerned.

I recommend that he be paid €8,500 specifically and exclusively for the breach of his rights arising from the manner in which his tenure in Position D was terminated and on the basis that he accepts this recommendation in full settlement of his grievance related to the matter.

Payment of Wages, Industrial Relations