Complainant

Respondent

Parties

Sean  O'Se

The Minister Of Agriculture, Food And The Marine

Representatives

John Cashell Cashell Solicitors

Aoife Burke Chief State Solicitor's Office

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-00040535-001

22/10/2020

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

CA-00040537-001

22/10/2020

The Complainant alleged he was employed as a Harbour Foreman and was not properly paid for his duties. The two complaints were identical and a duplicate.

The Complainant was employed since May 14th 2007 as a Foreman.

The Complainant alleged he was on the wrong pay scale and maintained he was a Harbour Foreman and that other Harbour Foremen were receiving a higher rate of pay.

The Complainant alleged that there was acceptance he was a Harbour Foreman by a Harbour Master.

The Complainant stated he performed the duties of a Marine Foreman.

The Complainant sought the Marine Harbour Foreman rate of pay.

The Complainant submitted a number of documents subsequent to the Hearing to support his claim.

The Respondent denied the totality of the allegations contained within the complaint form and in particular refuted any allegation that the Complainant was paid at any rate other than that which pertains to his applicable Grade as confirmed in his contract of employment.  

The Complainant alleged that he occupies a different Grade and therefore should be paid at a higher rate to that which is confirmed by his contract of employment and that he has therefore not received the correct remuneration. The Respondent denies that the Complainant is entitled to the enhanced salary claimed for the reasons suggested or at all. Moreover, there is no mechanism contained within the Act that allows for the determination of an employee’s Grade or to force a re-grading.

The Act governs "sums payable to the employee by the employer in connection with his employment”. While deduction is not expressly defined in the Act it is accepted that alleged deductions must be from sums to which a complainant is actually entitled and not allegations pertaining to grading and/or salary scales resulting in a lower salary than that which a complainant believes he/she should receive. Notwithstanding the fact that the Respondent asserts that the Complainant receives the correct salary commensurate with his Grade, simply put, the WRC has no power under the said Act to enforce a re-grading. Such an order/determination is precisely what would be required in order for this Act to have any legal relevance to the within complaint.

It was submitted where the complaint is clearly not stateable as an infringement of any provision of the Act it must fail at the preliminary stage.

Without prejudice to the foregoing, the complainant has also submitted his complaint well outside the statutory time limit permissible. In respect of the Payment of Wages Act, Section 41(6) of the Workplace Relations Act 2015 states:-

“(6)  Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) goes on to note that:-

“(8)  An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The complainant lodged his complaint on 22 October 2020 yet alleges that he has been paid the incorrect sum essentially since he commenced his employment in 2007 and at the very latest since 2010/2011. Clearly, even if stateable, this complaint would be extraordinarily out of time. 

The within complaint clearly pertains to alleged underpayments that commenced in and around 2007 (and at the latest 2010/2011) and therefore the WRC does not have jurisdiction to adjudicate upon same. Indeed, in correspondence from the Complainant’s solicitor to the WRC on 4 January 2021 , it was confirmed that it was “in order to proceed” with the Complainant’s case pertaining to the said alleged deductions in circumstances where previous correspondence had indicated that the claim would be limited to the 6 months prior to the submission of the complaint forms. For the sake of clarity, the Respondent refutes that the within complaint could be limited in the manner previously suggested in any event.

For the sake of completeness and perhaps even being too generous given how strictly statutory time limits are construed, the Complainant formally took issue with his salary in and around early 2018 through his union SIPTU. Therefore, without prejudice to all of the foregoing, taking a precautionary approach as one should always when it comes to the matter of statutory time limits, any stateable claim for breach of the Act should have been lodged with the WRC at the latest in 2018 and yet no such complaint was forthcoming until 22 October 2020. There simply can be no question upon a review of any of the possible scenarios arising that the within complaints are statute barred.

It was submitted that the Complainant’s claims, in respect of the totality of the foregoing or in respect of one or the other of the preliminary points, should fail automatically.

The Complainant commenced his employment with the Respondent in and around mid 2007 as a Non Craft Marine Foreman. The pay scale upon which a Non Craft Marine Foreman is paid is GO Band/Grade 1 (Rural) or General Operative Band/Grade 1 (Rural) in other words this is the Complainant’s Grade. The applicable pay scale for the Grade is set out at clause 1 of the contract of employment. On 30 July 2007 the Complainant certified that he was amenable to accepting employment on the terms set out in the aforementioned contract and he returned his form of acceptance in that regard accordingly. Upon accepting the position, as expected, the Complainant’s details for payroll were forwarded to the Respondent’s Accounts Branch in and around July 2007 by

Human Resources indicating once again, the Complainant’s correct grade GO Band/Grade 1 (Rural).

The Complainant appears to take issue with his remuneration on the basis of his title and/or particular duties that he allegedly undertook over the course of his tenure. If he had been formally acting up as alleged for the period as alleged then a formal acting up position would have had to have been established. Indeed, the Respondent refutes that any member of staff would be required to act up formally or informally long term as suggested and in this case the Complainant was not requested and/or instructed to act up as alleged or at all. 

Notwithstanding the foregoing and the fact that the Respondent disputes the

Complainant’s version of events vis à vis alleged imposition of additional duties, salary is determined based on Grade not based on title. The position was explained to the Complainant firstly through his Union who for the sake of the record accepted the position and then through his solicitors . The Respondent cannot simply increase any employee’s salary based on the fact that an employee feels that he or she is being underpaid (which is denied) because he/she believes he/she is carrying out a role similar to another employee in another Grade. This is simply not the basis for salary increments and/or promotions within the Respondent or indeed across the public service. Indeed, even if this could happen, the Respondent asserts that the assumed persons against whom the Complainant believes he should be compared are not appropriate comparators. 

Notwithstanding the fact that the Complainant now alleges that he has essentially always received the wrong remuneration or at least since 2010/2011 this was not communicated to HR until in and around 2018. This is in circumstances where he alleges that he was carrying out duties over and above that for which he was employed to carry out from the latest 2010/2011 to date. Moreover, the Complainant did not take issue with the fact that he was not receiving additional remuneration specifically for the alleged acting up. 

In and around July 2019 the Respondent ran an internal competition for Marine Foreperson in the Complainants employment location and the Grade that applies to that position is Foreperson Band/Grade 1. To be clear, the Complainant’s Grade is General Operative Band/Grade 1 (Rural). The Complainant submitted an application for this competition and achieved a place on the order of merit but was not appointed as other competitors placed higher on the order of merit. The fact of this application confirms that the Complainant knew at all times that to be awarded the Grade that pertained to a Foreperson he would have to go through the usual competition process i.e. that he could not simply be re-graded. The application also highlights the fact that the Complainant knew that his Grade was that of General Operative and not Foreperson.

The Respondent notes that the Complainant feels aggrieved however it is respectfully suggested that this sentiment arises as a result of a failure to accept that he is paid the correct salary on the basis of his Grade. Unfortunately, the Respondent is not in a position to simply re-grade any employee as such a process is not as straightforward as a private sector pay rise scenario and details of same can be provided in evidence if so required. Re-grading occurs when an employee is promoted through the appropriate promotional competition.

Finally, as specifically mentioned in the email on 8 May 2020 to the Complainant’s solicitors. it is categorically denied that the Complainant’s superiors or anyone made any alleged statements to him in relation to his Grade, title, duties and/or position the manner suggested or at all. Moreover, notwithstanding this assertion, only the Respondent can determine the Complainant’s terms and conditions of employment and any representations and or documentation that are not approved by and or originate from the Respondent simply cannot be relied upon by the Complainant as a basis for an alteration of his terms and conditions of employment including remuneration. 

Having regard to the totality of the foregoing it was submitted that the Complainant’s claims should fail in circumstances where:-

His complaint is not stateable;

His complaint is out of time; 

He has conflated what he perceives to be his proper title with salary grading;

He receives and at all times has received the proper remuneration commensurate with his grade; and

The WRC has no power to enforce a re-grading upon a public sector employer and/or any employer notwithstanding the fact that there would be no basis to do so in the within case.

For all of the aforementioned reasons the Respondent submits that the Complainant is not entitled to succeed and his complaints should be dismissed.

The Complainant, at no time, stated he did not receive what was properly paid to him from a legal contractual perspective. His case is that he should have received more than his contracted rate of pay. He did receive what was legally due to him so the requirements of the Act are therefore fulfilled. To consider that he should have received more than was legally due to him is not a function for an Adjudicator under the Payment of Wages Act. To consider this question would take on powers that are not open to an Adjudicator under the Act. The consideration of this type of claim is more commonly addressed in an Industrial Relations forum.

For the purpose of clarity, the only timeframe considered by the Adjudicator was the six months prior to the Complaint being submitted to the WRC as all other past service time requested to be included by the Complainant is not eligible under the Act.

I find that the two Complaints (which were identical) are not well founded as the Complainant was paid what he was contractually entitled to be paid and no breach of the Act has occurred. The Complaint fails.

Payment of Wages