ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033770

Parties:

	Complainant	Respondent
Parties	Stephen Doyle	Permanent TSB

Representatives

Complaint(s):

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-00044475-001	03/06/2021

Date of Adjudication Hearing: 26/08/2021

Workplace Relations Commission Adjudication Officer: Hugh Lonsdale

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The parties were also afforded the opportunity to examine, and cross examine each other’s evidence as part of the hearing. An affirmation was administrated to the parties who gave evidence at the hearing in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021.

Background:

The complaint arises from a loss of income when the complainant reverted to his substantive post.

Summary of Complainant’s Case:

The complainant started working for the respondent on 8 January 2018 as a Senior Field Based Consultant. On 1 April 2019 he was appointed to a temporary Acting Territory Sales Manager position. In March 2021 he applied for a permanent position as Territory Sales Manager and was unsuccessful. He was forced to revert to his former position and lost an allowance of €843 per month (€10,116 per annum). He contends this is grossly unfair and morally wrong as he was doing the duties very successfully for two years and is more than qualified for the role. He feels the process was biased and one of the people appointed does not have the same qualifications or level of experience. The loss of income will mean he will longer be eligible for the mortgage approval he had obtained.

Summary of Respondent’s Case:

The respondent confirmed the complainant’s start date and appointment to temporary Acting Territory Sales Manager on 1 April 2019 until 31 December 2019. Then his temporary contract was extended to 31 March 2020 and was further extended to 31 December 2020. There was a further extension to 31 March 2021.

Between January and March 2020, the Bank engaged in an organisational review of the Retail/Branch network. Because of the Covid-19 pandemic the consultation with staff representative bodies did not start until November 2020 and concluded in March 2021. This resulted in reduction in the overall Territory Sales Manager positions from 40 to 30 fte.

On 26 March 2021 the Dublin Regional Manager told the complainant and the other acting Territory Sales Managers that 2 permanent positions were being advertised. In this communication the complainant was also told he would return to his substantive role on 1 April 2021.

The complainant applied for the permanent positions but, after an extensive and objective recruitment process, was unsuccessful.

The respondent submits the temporary nature of the contracts was always clear. Therefore, they do not accept that an unlawful deduction was made from the complainant’s wages when he reverted to his substantive position and lost the allowance.

Findings and Conclusions:

The complainant lost an acting-up allowance of €10,116 per annum when he was unsuccessful in a competition for two permanent positions and reverted to a substantive post. The respondent said the complainant was always aware from the contracts given to him that he was acting-up for a temporary period and they had no choice but to revert him when he was unsuccessful. As such they contend, they acted in accordance with the complainant’s contracts and the reduction in pay was not an unlawful deduction. The complainant says he was very qualified and experienced and should have been kept on at the level he was acting-up to where he was doing a good job. To make him revert and lose the allowance was unfair and amounts to an unlawful deduction.

Section 5 (1) of the Payment of Wages Act states:

“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.”

The respondent explained the process that led to the advertising of the two posts. They then held a recruitment competition for two permanent posts and gave evidence of the process involved. The complainant could only say he was better qualified and experienced than one of the successful candidates. I can find no fundamental flaw in the recruitment process. Therefore, the respondent had no option but to revert the complainant to his substantive post.

His salary dropped but I cannot find that this was a deduction in the sense set out in section 5 (1), or anywhere else, in the Payment of Wages Act, 1991, and therefore the loss of the allowance cannot amount to be an unlawful deduction.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons given above I find the complaint is not well founded.

Dated: 21-09-2021

Workplace Relations Commission Adjudication Officer: Hugh Lonsdale

Key Words:

Payment of wages – not a deduction