Complainant

Respondent

Anonymised Parties

Technician

Education Provider

Representatives

Bob Stacey Unite the Union

Michelle Ryan Ronan Daly Jermyn Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038543-001

06/07/2020

The dispute is concerned with a claim by the employee that he should have been appointed to the second point of the appropriate scale from the date of his appointment. Following representations by his union at local level he was placed on the second point of the scale with six months retrospection. However, the amount of retrospection remains in dispute. In 2019,the employee referred a complaint to the WRC under the Payment of Wages Act where the adjudication officer in ADJ-00016002 decided that ‘In summary, therefore, having considered the submissions and evidence of both parties, that the complainant was in receiptof the remuneration properly payable to him and consequently no unlawful deduction was made from his salary. In that decision the adjudication officer noted that the matter had commenced at local level as an industrial relations matter. Subsequent to that decision, which was not appealed by him, the employee referred a dispute to the WRC under the Industrial Relations Act,1969. The employer did not object to a hearing of the matter under this legislation.

The employee was appointed in March 2008. Some years later he found that other technicians were appointed to a higher starting point and received retrospection back to when they started. He raised the issue as a grievance and in 2018 management agreed to pay him another increment but with six months retrospection which he rejected. The Union described the decision to place him at the first point of the scale when he started as an error which was recognised by the employer when they paid the second increment and full retrospection should also be paid as it was when the same errors were rectified in other cases. Details of retrospection paid to other technicians were provided with the submission.

The Employer applied the terms of circular 13/2006 to the employee on his appointment. That circular provides at Section 3 for incremental credit which may be awarded for professional experience-a factor never cited by the employee in his application or since his appointment. The employee is seeking to rely on an earlier circular which applied to DIT. This was a circular never produced by the employee but instead a VEC Circular dated 1980 was produced. The employee first raised an issue regarding his increment on appointment in August 2016 and while not accepting the application of the earlier circular or any error in the application of the clauses on incremental credit, the employer offered the one increment and six months retrospection to resolve a grievance.  The employee then referred a case to the WRC under the Payment of Wages Act,1991 but was unsuccessful before the adjudicator who accepted there was no obligation to grant additional incremental credit even if the circular of 1980 still applied as it said only that a technician may be appointed to a higher point of the scale. Some legislative and precedent arguments were advanced citing decisions of the Labour Court and the High Court relating those to time limits and the previous AO  Decision.

On the comparators provided by the employee, all but one of those who received retrospection did so based on their professional and not educational qualifications. Only one person cited as a comparator received credit based on educational qualifications and without any retrospection.

As advised to the parties at the hearing, from reading the submissions, there are two issues to be considered which would decide whether the employee should receive further retrospection in addition to the six months proposed by the employer. The two grounds are the application or otherwise of the DIT  agreement and even it was found that the terms of that agreement were  superseded by the terms of the circular 13/2006, whether the employee was treated less favourably than other employees irrespective of which circular was applied.   Should the employee establish a basis for further retrospection, then the amount of that retrospection would have to take account of the same issues but also that of reasonableness in terms of an industrial relations dispute. The fact of there being a Payment of Wages Decision does not preclude consideration of the dispute given that the decision in that case was one concerned with whether or not there was an unlawful deduction by the employer, a quite different test that is being applied arriving at a recommendation under the Industrial Relations Act.

Regarding the application of the DIT circular, what is being suggested by the union is that the terms of that agreement remained in place post the circular of 2006. This appears unlikely given that the circular of 2006 was a national circular issued following negotiations with the union and it addresses comprehensively the terms on which technicians can be advanced above the first pint of the scale on appointment and progression thereafter. The circular of 2006  makes no reference to additional increments for educational qualifications(unlike the 1980 Circular) and it is not unreasonable to suggest that by 2006 the basic requirement of qualifications was being standardised, and at a higher level than before.  The argument that the DIT Agreement or 1980 Circular ought to have applied to the employee at the time of his appointment in 2008 and that he should have been offered an additional  increment on appointment based on that agreement is not accepted. Neither is it accepted that even if it were applied, there was an automatic obligation to award an additional increment or increments.

Moving on to the question of comparable  treatment, it is unfortunate that the employer’s reasons for agreeing to pay additional increments to the comparators cited by the employee are not clearly set out in the internal documentation. However, there is nothing n that documentation which suggests that with one exception the advancement agreed to the second point of the scale was on grounds of educational qualifications. And in that one case the female comparator (D)the employee in that case was informed it was not an entitlement but, crucially, did not receive any retrospection at all unlike the employee in this case who was offered six months retrospection.

While it is perfectly understandable that the employee in this case  on hearing that others had received full retrospection to the date of his appointment, should have looked for the same-his case is based on the wrong comparisons and on misunderstandings. It is clear that from her appointment in 2014,the HR Manager has sought to resolve some individual problems of this nature but she has  applied the terms of the 2006 and awarded increments for professional and educational attainment in line with that circular and only agreed to pay an additional increment for reasons related to educational qualifications in the case of the employee in this case and one other, the person who was offered no retrospection (D).

Following this hearing of his case, I recommend that the employee accept the payment of the six months retrospection offered by the employer together with being moved to the second point of the scale in settlement of his dispute regarding incremental credit.

Rate  of Pay on appointment