ADJ-00033334

Complainant

Respondent

Parties

Alan  Bailey

Dun Laoghaire-rathdown County Council

Representatives

Eoin Powderly Powderly Solicitors

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-00044168-002

18/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044168-003

18/05/2021

The Complainant was appointed as a Library Assistant by the Respondent in 2000 and has acted in the role of a Ganger from June 2019 to August 2021 and from February 2022 to date.  The Complainant contended that he should have been regularised at the higher level and paid on the appropriate salary scale.  The Complainant submitted two cases, one in relation to payment of wages, claiming that the employer had not paid him, or had paid him an amount less than what was due to him, and the second claim was under the Terms of Employment (Information Act) 1994, claiming that he was not notified in writing of any change to his terms of employment. 

The Respondent denied the allegations, claiming that all terms and conditions and all payments relating to the Complainants’ substantive position and his acting up arrangement have been made in full and claiming that the Complainant was provided with his contract at the outset of his employment and remained working under those terms and conditions throughout. 

CA-00044168-002: 

The Complainant did not provide any additional specific information in relation to this claim however at hearing he outlined that had he been appointed on a permanent basis, he would have been in receipt of increments throughout the duration of his appointment.  The Complainant advised that he had not received those increments and so he was seeking payment of same. 

CA-00044168-003:

The Complainant did not provide any specific additional information in relation to this claim, however he did outline at hearing that he believed the Respondent to be in breach of their statutory obligations under Section 7 of the Terms of Employment (Information) Act 1994, in that he had not been provided with particulars of office etc relating to his appointment to the position of Ganger. 

The Respondent submitted that the Complainant was appointed as a Library Assistant in early 2000 and in accordance with his contract of employment as a Green Machine Operator shift in February 2012.  The Respondent confirmed that the Complainant is currently on the 13th point of the Green Machine Operation shift scale rate.  The Complainant was appointed acting Ganger on the ECU shift from June 2019 to August 2021 and from February 2022 to the current date.  The Respondent submitted that during these acting periods he continued to be paid as a Green Machine Operator, as his own substantive pay scale is higher, however the Ganger role is a recognised supervisory role.  At the date of hearing, the Complainant still occupied the role of Ganger in an acting capacity.  

The Respondent submitted that from the 28th August 2021 to the 3rd February 2022, the Complainant acted up as Assistant Foreman shift and received a higher rate of pay for the duration of this period at the Assistant Foreman shift hourly rate which is the first point of that scale.  

The Respondent submitted that the Complainant emailed the Respondent on a number of occasions between November 2020 and February 2021 regarding the acting positions and the appointment process of the Respondent and the complaints process.  The Respondent responded to those queries and attached copies of the Grievance Procedure and confirmed that appointments could only be made to permanent positions following competition and that appointments could not be made to posts simply on the basis that an employee was acting into it.  The Respondent submitted that the matter was subsequently referred to the Workplace Relations Commission on the 18th May 2021 without having utilised the Respondents’ grievance process or utilising or exhausting local procedures.  The Respondent set out the following in relation to each of the respective claims: 

CA-00044168-002 (Payment of Wages Act): 

The Respondent submitted that in relation to the claim in the current case, the Complainant has made a complaint under Section 6 of the Payment of Wages Act, 1999, which provides; “An employee may present a complaint to a Rights Commissioner that his employer has contravened Section 5 in relation to him ….  The Respondent drew attention to Section 6 of the act which provides that “A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates …”.  The Respondent pointed out that as the complaint had been submitted on the 18th May 2021 the reckonable period for a claim would be from the 19th November 2020 to the 18th May 2021.  The Respondent submitted that it is a matter of fact that during that period the Complainant was in the substantive post of Green Machine Operator shift and undertook the acting post of Ganger ECU shift during that period.  The Respondent submitted that the established hourly rate for these posts is €19.99 and €19.09 respectively at the 13th point of each scale with the Complainant substantive post being the higher rate of pay.  The Respondent submitted that despite occupying an acting role which carries a lower rate of pay than his substantive role, the Complainant was paid at his higher substantive rate during this period of acting than that which is the established rate of pay for the Ganger post, where that pay scale is set centrally by the relevant government department.  

The Respondent in their submission drew attention to the alleged breach of the act in relation to pension contribution and outlined in their submission the relevant section 5 of the act.  The Respondent drew attention to the fact that the Complainant had not provided any dates in relation to the alleged breach of this section of the act.  However, notwithstanding that the Respondent pointed out that the Complainant was paid a higher rate of pay than the rate of pay for the role that he was undertaking so in the view of the Respondent there is no basis for the complaint under the act.  The Respondent stated that it was a matter of fact that there is no deduction, so no breach of the act arises.  The Respondent submitted that the Complainant appeared to be seeking to be paid at some other unspecified higher rate of pay than that established and permitted by the department and the Respondent pointed out that it was not in their gift to do this.  Finally, the Respondent submitted that the Complainant is paid and has been paid correctly on the established rate of pay despite the fact that he is in an acting role which carries a lower rate of pay.  In these circumstances the Respondent does not see any breach of the act and believes that the Complainants’ case is without any basis.  

CA-00044168-003 (Terms of Employment (Information) Act): 

The Respondent submitted that the Complainant had taken a claim under section 7 of the Terms of Employment Act but pointed out that the complaint form did not identify any specific breach of the act.  The Respondent submitted that, instead, the Complainant alleged in his complaint form that he should be regularised in his acting position.  The Respondent sought to raise the point that this is not a matter related to the act and no contravention of the act had been identified by the Complainant in his complaint form.  The Respondent stated that without prejudice to the foregoing they would note that Section 3 of the act relates to the provision of a written statement in terms of employment and as such the Respondent believes they complied with the provisions of the act by virtue of the provision of the Complainants’ contract of employment.  The Respondent also pointed out that Section 5 of the act relates to notification of changes and in this context the Respondent pointed out that they did not see this as applicable where the Complainants’ employment contract remains in place.  The Respondent submitted that Section 6 of the act relates to employment before the act was introduced and provision of employment contracts.  The Respondent pointed out that the Complainant has been provided with an employment contract and so this section is not relevant to the current case.  The Respondent pointed out they would assert that the complaint under this act is not relevant to the act and no identifiable breach has been identified or exists. 

In conducting my investigation I have taken into account all relevant submissions presented to me by the parties in advance of the hearing, all information given at hearing and all supporting documentation provided by the parties.  I set out below my findings in relation to each of the complaints. 

CA-00044168-002: 

In conducting my investigation on this matter, I have taken into account all relevant submissions presented to me by the parties both in writing and orally at hearing as well as all supporting documentation provided.  

In particular I noted that the Complainant submitted that he was at a loss in terms of his income and his pension arising from the acting up arrangement.  I noted, also, the Complainant position that had he been permanently appointed he would have been in receipt of increments throughout that time and that he has lost out on the value of those increments and related pension contributions.

It is clear, that within the public service, generally, acting arrangements are put in place, in circumstances where a post is not available for permanent filling or until the employer is in a position to fill posts on a permanent basis through competition and it is clear that there is an obligation on public service employers to fill posts through open competition, unless a specific agreement has been entered into and approved.  In those circumstances, for much of the time related to the instant case, the relevant post was not available for filling on a permanent basis and so the Respondent utilised the long-established practice of putting “acting” arrangements in place.  I further noted the Respondent position that the Complainant had been left on his substantive salary for the duration of the acting arrangement and that his substantive salary was slightly higher than the salary attaching to the acting position.  This position was not disputed by the Complainant.   Taking all of the above into account, I concluded that the Complainant was not at a loss of any income and therefore had no entitlement under the Payment of Wages Act.  

CA-00044168-003: 

In considering this matter I have taken into account all relevant submissions and evidence presented to me by the parties both in writing and orally at hearing as well as all supporting documentation provided.  

I noted the Complainants’ position as set out in his claim form that he had not been provided with written notification of terms of employment in accordance with the act, albeit he described on the form matters relating to regularising his acting arrangements.  I noted that, at hearing, he described that he had never received written confirmation of changes to his terms and conditions in relation to his acting arrangements. 

I further noted the Respondent position that the Complainant had a contract of employment relating to his substantive position and that as his substantive position had never changed, there was no requirement to provide him with details of any new terms and conditions.  Based on the above and the information provided I have concluded that the Complainant had been provided with his contract of employment setting out the terms and conditions of his employment and that this was appropriate to his substantive position.  However, it is also clear that he did not receive any written confirmation of the changes associated with the acting arrangements and I consider that this should have been done even in circumstances where his salary remained unchanged.  At a minimum, the Complainant would have benefitted from having written confirmation of the appointment to higher level, the expected duration of such appointment, the fact that his salary would be maintained, hours of work associated with the higher level post, as well as annual leave arrangements, duties attaching to the post, reporting relationship and any other information that might influence his day to day experience of carrying out the role. 

In these circumstances, I consider that his case was well founded. 

CA-00044168-002: 

It is my decision that this complaint is not well founded. 

CA-00044168-003: 

It is my decision that this complaint is well founded and that the Respondent should pay the Complainant the amount of €1000 by way of compensation for this breach of the Act. 

Payment of wages, terms of employment