Complainant

Respondent

Anonymised Parties

A Paramedic

An Ambulance Service Provider

Representatives

none 

in house reps 

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-00039161-001

13/08/2020

The Complainant claims that he is paid €3,000 less than some of his work colleagues with a similar length of service due to changes to the pay Circular for new entrants in his current grade.

The Respondent said that there is no case to answer under the Payment of Wages Act 1991, the claim relates to a collective matter relating to the implementation of a national pay agreement.

The Complainant is an advanced paramedic supervisor, who commenced working with the Respondent on 3 February 2011 and was promoted into his current role on 8 April 2019.

The Complainant claims that he was successful in a national competition held in 2018 and when he was called for promotion in April 2019, he took up the position and was paid in line with the pay Circular that was in place at that time, which is €3,000 circa. less than other newly appointed promoted staff, who delayed accepting their promotion until a new pay Circular came into effect in October 2019. The new Circular introduced an uplift in pay to those in “new entry grades”.

By accepting the promotion at that time, the Complainant moved to a grade that is not deemed a “new entry grade”, whereas his previous grade was deemed a “new entry grade”. He claims that if he waited until the new Circular came into effect, he would be financially better off, as he would have availed of the uplift in his previous grade, which when aligned to his new position on the pay scale on his promotion would have placed him much higher.

The Complainant said that he would have delayed accepting his offer of promotion had he know that the new pay scale arrangements were in place. He claims that the Respondent failed in its duty to explain that to him.

The Complainant said that he was not informed of the effect of the impending arrangements and now finds himself at a considerable financial disadvantage compared to work colleagues who decided to wait or were placed after him on the competition panel. He deems that his situation is quite unique to him and extremely unfair.

The Respondent said that the Complainant has not had any deduction from his wages, and he is paid in accordance with his contract of employment, national pay agreements and the appropriate pay scales at all times.

The Respondent said the national competition was advertised in 2018, following that they held interviews, and appointments were made in 2019 after delays which were outside of the Respondent’s control at the time. The Complainant was offered promotion and accepted it on 8 April 2019, and he moved to the appropriate point in the scale governing his new position following promotion.

The Respondent said that a new Circular in relation to pay, which was agreed at national level, which was part of the implementation on pay agreement and incremental pay restoration, came into being in October 2019 and the Complainant attempted to raise an internal grievance on this matter but was informed that he could not as it was a collective matter and not an individual matter.

The Respondent said that this claim does not qualify under the Payment of Wages Act 1991 as there was no deduction from his pay or omission or non-payment for hours worked or any reduced earnings, as is required for a claim under section 5(1) to (5) of the Act.

The Respondent said that the Complainant has never had his payment reduced that would possibly qualify him protection under the Act. Instead, he is attempting to claim a higher rate of pay that he is not entitled to.

The Respondent said the conditions of the new pay Circular are clear, employees that are deemed no longer on a ‘new entrant grade’ as a result of promotion do not qualify for this financial uplift under the new Circular.

The Respondent was adamant that the Complainant’s case is based on conjecture, namely where he claims that had he waited he would have fared better financially. In response the Respondent said that if he turned down the promotion when offered, as he suggests he could do, he may never be offered promotion, as that would depend on vacancies arising.

The Respondent relies on Labour Court Determination LRC 22027 and LRC 22318 in support of its case were the crux of the Complainant’s case here aired in the Labour Court and the Court found in the Respondent’s favour.

The Law

Section 5(1) of the Payment of Wages Act prohibits an employer from making a deduction from the wages of an employee unless certain conditions are fulfilled. Section 5(6) 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 employer from the wages of the employee on the occasion.”

Conclusion

The Complainant claims he is at a loss of €3,000 because he, in effect, took a promotion too early and thus lost out on the possibility of gaining from a new pay Circular arrangement which would have benefited him before taking the promotion.

The Respondent says that there was no deduction from his pay or omission, or non-payment for hours worked or any reduced earnings, as is required for a claim under section 5(1) to (5) of the Act.

I note in the High Court case Dunnes Stores (Cornels Court) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the Complainant and that the burden of proof falls squarely on the Complainant to show that the wages were properly payable.

Having carefully considered all the arguments, I have sympathy for the Complainant as to where he finds himself. However, I find that the Complainant has not met the burden of proof in respect of showing that any wages that were properly payable to him were not paid.

I find that he accepted a promotion and moved to the appropriate pay scale at that time. There was a subsequent national collective agreement which yielded better rewards in certain categories of employees and grades and he lost out because he did not qualify. However, he is being paid as per his contract of employment, national pay agreements and the appropriate pay scales.

I find that there was no contravention of the Payment of Wages Act 1991.

I find that the complaint pursuant of the Payment of Wages Act 1991 is not well founded. I find that there was no contravention of the Payment of Wages Act 1991.

Payment of Wages Act- not well founded