Complainant

Respondent

Anonymised Parties

A Homeless Officer

Homeless Services Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00044760-001

23/06/2021

The Complainant disputes the withholding of an increment.

The Complainant received a Disciplinary sanction (written warning) on the 7th November 2019 to be held on file for 12 months. The written warning letter did not state that his yearly increment will be held and it was not in the policy of the organisation at that time.  Normal increment date has always been the 01st April.   The Disciplinary Sanction imposed on him expired on the 7th November 2020. At the end of 2020, the Board approved 2020 pay increments payable with effect from 1st November 2020. The Complainant  received his pay increment with effect from the 1st November 2020. The Board subsequently authorised backdate of Increments to 1st April 2020 for all staff The Complainant did not receive this backdated sum due as the Respondent claims that his Disciplinary sanction was live at that date. However, it was not stated in the sanction letter, neither was it

in the policy of the organisation at that time. It was later put in the policy after it was reviewed. Therefore it was not in accordance with their policy. The Union wanted to refer the matter to the WRC but the Senior Manager engaged with the Union and promised to discuss the matter with the CEO with the hope of resolving it.   The manager informed the union on 23rd June 2021 that the increments will not be paid.

The Respondent refutes this allegation in its entirety as this backdated increment was not

properly payable to the Complainant due to the presence of a live disciplinary warning on his employee file at the time. It is the Respondent’s practice to withhold increments where there is a live warning on the file of the employee concerned and this is reflected in the

Respondent’s policy on increment progression.

The Respondent implements an annual increment (i.e., employees move from one band point to the next normally once a year) subject to the availability of funding, approval from its Board and certain conditions (i.e., the employee concerned must have successfully passed probation and have a clean disciplinary record in order to receive the increment). This new increment progression system was implemented in 2019 following a negotiation with the Union in 2018/2019. The increment was applied in April 2019 and April 2020 and was implemented in the June pay period of each of those years, with back-dated payments as necessary to the beginning of April. In 2021, the increment was applied in July of that year. The process is explained in detail in the document entitled ‘Phase 2 of the Pay Restoration Process’ – this document was sent by the Respondent to all line managers in June 2019 following the outcome of the negotiation with the Union – all line managers explained the details of the new banding system to their team members in line with this document. This document contained the following clause:

Most of your team members will move to the next point of the appropriate band but

there may be a few exceptions as follows:

2. Someone who is on a written warning or a Performance Improvement Plan

(PIP) under the Disciplinary process.

In 2020 and 2021, there were some delays due to the impact of the pandemic, and increments were applied later in the relevant year. In 2020, the Board decided late in the year to apply increments, and so, increments were applied from the beginning of November 2020 and, subsequently, the Board decided to backdate increments to April 2020.

On 1 October 2019, the Complainant was informed in writing of the outcome of an

investigation which had been held against him. The Complainant had been accused of

defrauding the Respondent to the value of €366.00 (by booking taxis without permission on the company account) and the allegations were upheld on the balance of probabilities.

On 7 November 2019, the Complainant was issued with a written warning. The Complainant

was afforded the right to appeal the sanction to the CEO. The Complainant accepted the

sanction afforded and repaid the monies owed to the Respondent. The written warning was effective from 7 November 2019 and was set to be expunged after a year on the file.

In a normal year, the increments for all staff would have been applied in April 2020 – however, due to the effects of the pandemic, the application of increments had been delayed to November 2020. The Board subsequently decided to backdate increments to April 2020. This actually benefitted the Complainant – if the Respondent had applied increments in April 2020, the Complainant would not have been eligible due to the presence of the written warning on his file.

The Complainant raised a grievance objecting to the withholding of the back payment.  The CEO explained that he had signed off on the Complainant’s increment effective from

1 November 2020 as a gesture of goodwill, despite the Complainant having an active

warning on file until 7 November 2020.  Following meetings with the Complainant’s Union, the Respondent confirmed that

The CEO concluded [that] [the Complainant] did receive the increment at a time when

technically he was not entitled to it and was satisfied with the decision that no back

pay was payable from the 1st April 2020. [The Respondent] operates on the principle that

where an employee has been issued with a formal warning under the disciplinary policy

they will not receive a salary increment.

The Respondent accepts that the written warning which was issued to the

Complainant on 7 November 2019 did not contain a clause which stated that future

increments would be withheld. However, this provision was clearly stated in the

Respondent’s ‘Banding Guidelines’ / ‘Pay Policy’ which had been in place since 2019.

Following the implementation of the new banding system – all line managers were instructed to communicate the information to their team members. The

Complainant had access to this policy and had the opportunity to raise this as an issue

with the Respondent, or ask the Respondent for a copy of the policy.

Backdating of increment.