Complainant

Respondent

Parties

Marian  Lynch

Trinity College Dublin

Representatives

  Alan O’Neill

Peter Flood, IBEC

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-00041591-001

17/12/2020

The Complainant commenced employment with the Respondent on 1st May 2020. She asserted that according to her contract of employment she was entitled to receive a pay increase effective from 1st October 2020 which was not effected by the respondent. The pay increase is in the amount of €1,353 per annum.

The Complainant was initially engaged by the Respondent as an agency worker in November 2019, before she became directly employed on 1st May 2020. She asserted that according to her contract of employment she was entitled to receive a pay increment and move to the next point on the pay scale effective from 1st October 2020.

She checked this with her line manager who examined her contract of employment and was also of the view that she was entitled to a pay increase. She invoked the grievance procedure but was informed by the Respondent that she had to have been engaged as a direct employee on 1st April 2020 to be entitled to an increment.

·       The Respondent asserted that, in relation to increments, the Complainant’s contract states "Annual salary progression will be dependent upon satisfactory performance in accordance with College statutes. In general, salary increments are awarded with effect from 1st October annually.”

·       While it was accepted that the Complainant’s contract did not stipulate that she had to be employed by the Respondent on 1st April to receive a pay increase, it was highlighted that the following wording is normally used in contracts “In general, salary increments are awarded with effect from 1st October annually. If your commencement date is on or before the 1st April, you are eligible for an increment in October of that calendar year. If your commencement date is after the 1st April, you will be eligible for your first increment on the 1st October of the following calendar year. Annual salary progression shall be dependent upon satisfactory performance in accordance with College statutes”

·       It was also highlighted that in an email sent on 22nd October 2020, the Complainant stated that she was enquiring on eligibility to an increment which the Respondent suggests that she accepted that it was not definite that one would be applied to her in the October after she commenced employment with the University.

·       It was also highlighted by the Respondent that the principal reason for the awarding of an increment is to reflect the experience of an individual in a role and that the EU Court of Justice decision in the Danfoss case (C-109/88) stated that “.... since length of service goes hand in hand with experience and since experience generally enables the employee to perform his duties better, the employer is free to reward it without having to establish the importance it has in the performance of specific tasks entrusted to the employee.”

·       The Respondent asserted that the same principle applies to a person taking on a new role and that a minimum period is necessary to demonstrate competency in the role, namely six months.

·       It was also stated that the Complainant’s contract does not state that she will receive an increment in October each year. It states that ‘in general’ that salary increments are paid in October each year. The Respondent stated that the Complainant never sought clarification on this and that if she had, the policy would have been explained to her.

THE LAW

The Act at Section 5, in relevant part, provides as follows:

5. (1) 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.

And

5(6) 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.

APPLICATION OF THE LAW

The provisions of section 5(6) of the Act were considered by MacGrath J in an appeal on a point of law from a decision of the Labour Court in the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55. In that case MacGrath J re-affirmed the proposition that, in a section 5(6) application, the first matter to be determined by the Court is what wages are properly payable under the contract of employment.

I am therefore required, having investigated this matter, to establish what wages were properly payable in accordance with her contract of employment and specifically if the Complainant should have received a salary increase on 1st October 2020.

Omission of April 1st start date

I note firstly the Complaint’s assertion that as there was no provision in her contract of employment which stipulated that she had to be in the employment of the Respondent on 1st April 2020 to receive a salary increase, she was of the genuine belief when she read her contract that she would receive a pay increase and move to the next point on the scale on 1st October 2020.

While I also note the Respondent’s assertion that the absence of a provision surrounding the start date for pay rise eligibility was simply an error and that there should have been an expectation that she spend a minimum period in the role to obtain a pay increase, I am of the view that, as well as there being no provision surrounding a start date,  it was reasonable for the Complainant to have had an expectation that she would be entitled to an increment given that she had started with the Respondent as an agency worker the previous November, eleven months prior to 1st October 2020.

I was also struck by the absence of any provision surrounding an April 1st start date for pay increase eligibility in any documentation that the Complainant could access, particularly in the Respondent’s Employee Handbook and in the document with the salary scales, prior to the Complainant highlighting the matter. In the absence of same, I do not consider it credible that it was widely known within the University that employees had to be in post on April 1st to be entitled to a pay increase and note that it is now included in relevant documentation, other than the contracts of employment, having been highlighted the Complainant. This lends further credence to my view that it was not widely known by either line managers or employees generally. 

Annual salary progression will be dependent upon satisfactory performance in accordance with College statutes

While I note the Respondent’s assertion that the Complainant’s contract of employment states that “Annual salary progression will be dependent upon satisfactory performance”, there was no evidence presented to me to suggest that salary increases were not paid to employees whose performance was deemed to be unsatisfactory or that certain objectives had to be met to achieve a pay rise.

Moreover, I found an email from her line manager of 27th October 2020, referred to during the hearing and furnished to me by the Complainant afterwards, to be significant. Specifically, I note from this correspondence that the Complainant’s line manager reviewed her contract of employment and suggested that she had “grounds for pushing back” on the Respondent’s refusal to pay her the salary increase.

As well as lending further support to my view outlined above that it was not widely known within the University that pay increases were only applicable if an employee began on or before April 1st , I note that as her line manager had reviewed her contract of employment and considered that the Complainant was entitled to “Annual salary progression” in line with the contract terms, she evidently found her “performance” to be “satisfactory”.

In general, salary increments are awarded with effect from 1st October annually

The Complainant’s contract of employment also stipulates that “In general, salary increments are awarded with effect from 1st October annually”. While the Respondent stated that this meant that salary increments are not always applicable on 1st October, I note that the widely used definitions of “In general” are “normally”, “usually”, “mainly” and that there was nothing abnormal or unusual presented to me by way of evidence which suggested that the Complainant should not have received her pay increase on October 1st.  

Bearing all of the above in mind, I find that from October 1st 2020 the Complainant was not paid the wages that were properly payable to her in accordance with her contract and that this failure to do so represented a deduction under the Act.

Given that the complaint is well founded for the reasons set out above, I find that the Complainant must be paid an amount of €289 subject to the normal statutory deductions.

This represents the salary increase that was properly payable to her between October 1st 2020 and 17th December 2020, the date on which the complaint was referred to the WRC.

Pay increase;