Complainant

Respondent

Parties

Martina  Coughlin

Daisyhouse Housing Association Clg

Representatives

Self 

Mary Paula Guinness B.L. instructed by Gleeson, McGrath, Baldwin 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-00053819-001

22/11/2022

The Complainant is employed by the Respondent as an Accounts Administrator. She commenced employment on the 23rd of September 2019. Her gross monthly pay is €1979.30. 

The Complainant made a single claim pursuant to Section 6 of the Payment of Wages Acts 1991 (as amended) (“the Act”) alleging that she received less than the amount due to her. The claim was initiated by way of Workplace Relations Complaint Form which was received by the W.R.C. on the 22nd of November 2022.

The Complainant represented herself. She provided a lengthy and detailed narrative on her W.R.C. Complaint form. She also supplemented this narrative with multiple additional submissions prior to the hearing.

In supplemental submissions the Complainant said “I started in September 2019 and was then told that I would be getting an increase when pay restoration was introduced. Daisyhouse knew from May 2021 that they were not eligible for pay restoration yet did not seek another solution.” The Complainant also submitted that the Respondent “did not succeed in terminating my employment and that is not an issue. I would ask the WRC to decide only on the matter of the pay increase.”

In a further written submission, the Complainant stated as follows:

“Specific Adjudication Request:  My original complaint contains a lot of background information, but I only wish for the WRC to adjudicate on one issue.  That is that after making a request for a pay increase to my employers, The Board of Management at Daisyhouse, it was granted.  However, I believe the CEO then tried to prevent me receiving this increase by incorrectly saying it was a new post and needed to be advertised externally, and I might lose my job.  I believe this was an attempt to unfairly dismiss me at worst, or if they did not find another suitable candidate it was an opportunity to change my terms and conditions.  I request my wages be increased to €2,190.07 from June 2023, which is the pro-rata rate for a 32-hour week.  I also seek the back payment of €4,267.32 from October 2021.  I also which to clarify that this is payment for work done under my current job description”.

In a further communication with the W.R.C. the Complainant stated “I entered a figure for the amount I was seeking. However that amount is increasing every month as I requested the salary increment be backdated to when it was offered”.

The Complainant initiated the present claim by way of W.R.C. Complaint form which was received by the W.R.C on the 22nd of November 2022. In answer to the question on page 2 of the form – “On what date should you have received the payment?”, the Complainant stated - ”29/11/2021”.  An issue regarding the possibility that the claim was made beyond six months of the date of the alleged contravention of the Payment of Wages Act was flagged for the Complainant by the W.R.C. The Complainant responded by email of the 17th of January 2023 as follows:

“You say that my complaint is outside the six months. However, I do not believe it to be so. Yes, the original offer of the pay increase was over six months ago, but my grievance hearing with the board was on 22nd June and I submitted my complaint to the WRC on 22nd November, which is only five

months later.

You recommend that employees should go through the grievance procedure before making a complaint. This is what I did. It was a slow process, because management deliberately withheld information that pertained to the payment of wages that I was then able to get under the Freedom of Information Act.

It seems unfair that the employer can behave in this way and use delay tactics to get away with unreasonable behaviour.

Can you please let me know if you will re-consider that my complaint is under the six months if taken from the end of the grievance procedure. “

The WRC Responded to this communication. The material part of that communication is as follows:

“Please note that the administrative section of the WRC has not taken any decision in relation to the time limit. The provisions governing the time limits pertaining to complaints have been brought to your attention. It is a matter for the adjudication officer to consider the various sections of the Act and decide accordingly.”

The Complainant gave evidence on affirmation at the hearing which is discussed in the findings section of this decision below.

The Respondent delivered written submissions prior to the hearing which, where relevant, can be summarised as follows:

The Claimant commenced employment with the Respondent on the 23rd of September 2019. She was employed at Point 7, Clerical Officer Grade 3 on the HSE salary grading framework. Her starting salary was €29,690. The Respondent is a Section 39 funded organisation. As a Section 39 funded organisation, the Respondent’s payroll is fully funded by the Health Service Executive (HSE) and the Respondent is restricted with regard to awarding pay increases without regrading an employee’s role.

The Claimant signed her contract of employment on the day she commenced employment. This contract made no provision for pay increases separate from those that were negotiated nationally. Following a request from the Complainant for a pay increase, Ms. Norris the Respondent’s C.E.O., emailed the HSE on the 21st of January 2021 to examine the option of creating a new role for an Accounts Manager which would have included some of The Complainant’s current duties and responsibilities as well as some which were undertaken by Ms. Norris at the time. The HSE advised Ms. Norris that they would only approve this if there was an open competition for the new role. They would have allowed the Complainant to ‘act up’ in the role for a six-month period. The reason for this role being created would have been to allow for the Complainant to achieve a pay increase through achieving a higher grade on the HSE pay framework.

Ms. Norris did not proceed with creating the new role as there would have been no guarantee that the Complainant would have been successful in such a competition at that time. This decision was taken in order to ensure that The Complainant was retained within the organisation.

In September 2021, following further proposals and requests from the Complainant, Ms. Norris discussed the possibility of creating a new role for an Accounts Manager with the Complainant outlining that the role would have to be advertised and filled through open competition following a six-month acting up period. The Complainant rejected the option of acting up in a new position with the option of entering an open competition stating that she considered the creation of this position was an attempt to terminate her employment with the company.

Ms. Norris met with a representative from Forsa Trade Union on the 8th of December 2021 to confirm that The Complainant was a valued member of staff and that there was no risk to her employment.

In March 2022 the Complainant requested a reduction in hours from 40 hours to 32 hours per week and this was granted.

On the 9th of June 2022 the Complainant lodged a grievance with the Respondnet. Amongst her complaints was the failure of the company to award her a wage increase. A grievance hearing was conducted by a director of the Respondent, and minutes were taken by another director. The Complainant was not accompanied although she had been offered the opportunity to be accompanied. Minutes of the grievance hearing were circulated to the Complainant. [The grievance concluded in August 2022]

In summary the Respondent’s position was that the Complainant was employed on a salary of €29,690. There was no commitment for this to be increased and the Complainant was made aware that the Respondent’s payroll was fully funded by the HSE as a Section 39 company.

The Respondent explored the option of creating a new role for an Accounts Manager which would have allowed the Complainant to benefit from being upgraded on the HSE pay scale/ framework. The Complainant rejected this suggestion, and the role was not created.

The role of Accounts Manager did contain some of the Complainant’s duties and responsibilities, but it contained sufficient additional tasks reasonably to make it a new role. It would have required her to develop new competencies to fulfil the new role.

The Complainant was informed that any new role would have to be advertised through open competition. There was never any pressure on the Complainant to move from her current role.

The Respondent rejected any suggestion that it wished to or threatened to terminate the Complainant’s employment or that there was any basis for this allegation.

In an additional oral submission at the hearing, Counsel for the Respondent argued that the Complainant’s claim was time-barred pursuant to s.41(8) of the Workplace Relations Act 2015.  She contended that the claim was initiated beyond six months from the date of the alleged contravention and that no reasonable cause had been established to extend that time. Without prejudice to that contention, she argued that if the time were to be extended on the basis that a grievance procedure was being pursued, that grievance concluded in August 2022 and yet no reasonable cause had been shown for the further delay of three months from that date to the date when the claim was eventually initiated in November 2022. Counsel relied on the Labour Court decision in Dublin City Council v. Laurence Skelly DWT212 as authority for the proposition that the pursuit of an internal grievance does not have the effect of stopping or suspending the running of the time period. In relation to the basis of what must be shown to establish reasonable cause generally  - in relation to any possible extension of time - reliance was placed on the decision in Cementation Skanska (Formerly Kvaerner Cementation) v CarrollDWT 38/2003.

The Respondent’s C.E.O. Ms. Ena Norris gave evidence on affirmation on behalf of the Respondent.

Section 5 (1) of the Act prohibits unlawful deductions from wages as defined in Section (1). An unlawful deduction can include an underpayment of agreed remuneration where the same is referable to the Complainant’s employment whether payable under her contract of employment or otherwise. In the case of Sullivan v Dept of Education PW2/1997 [1998] ELR 217, the phrase ‘payable’ was interpreted as meaning all sums to which an employee is “properly entitled”. In the present case I must first determine whether the Complainant is properly entitled to what is claimed and only if she is so entitled must I determine whether an unlawful deduction has been made within the meaning of Section 5.

The case made by the Complainant was clarified in her evidence at the hearing. In essence she alleged that an oral agreement was concluded as between herself and the Respondent’s C.E.O. Ms. Norris such that the Complainant would receive a pay increase with effect from October of 2021. In her evidence on affirmation the Complainant said that in October 2021, Ms. Norris came to her and said that the pay increase had been agreed but that she (Ms. Norris} had to check something with the H.S.E. A few days later a contract was drawn up and given to the Complainant to sign. The Complainant said that she was happy with the contract but that before she signed it, Ms. Norris said to her that the H.S.E. had insisted that the job be advertised externally. The Complainant said that Ms. Norris said that she wanted to keep the Complainant in the employment of the Respondent but that there would be no guarantee that she would be hired if the position went to external interview. The Complainant said that as a direct result of this conversation, she did not sign the contract that was put before her. The Complainant contended that a verbal agreement was made but then it was made impossible for her to agree to the terms which were put to her following that verbal agreement.

Ms. Norris gave evidence on affirmation. With regard to the conversation whereby the Complainant alleged that the pay increase was verbally agreed, she said that absolutely no contract was made. What was proposed was a new job description to reflect what was intended as a new role. As regards what subsequently occurred Ms. Norris said that that it was her understanding that she needed to increase the Complainant’s responsibilities in order to increase her salary. She said that the information she gave the Complainant regarding the necessity for external advertisement of the role was based on her understanding of best practice. Ms. Norris denied that she misled the Complainant.

The Complainant’s case rests entirely on the proposition that a binding legally enforceable contractual agreement was made in the course of a conversation which she had with Ms. Norris. She contended that the agreement was concluded on the basis that she would receive a pay increase effectively without condition. The parties were unable to provide a precise date for the meeting when this occurred. Apart from the Complainant and Ms. Norris, no other person was present. There was no reliable written record of the meeting and there is a conflict of evidence on what was said and understood by the parties.

It appears to me that the process undertaken by the parties in September and October of 2021 could best be described as pay negotiations where the Complainant sought a pay increase from her employer and her employer attempted to engage with this request. The purpose and objective of these discussions (as with any pay negotiations) naturally was to reach a mutually satisfactory workable solution which would then be reduced to writing. By its very nature, pay negotiations have a fluidity where parties exchange information and adopt positions accordingly but it is also common for this information to be questioned or challenged and sometimes where it becomes clear that an important piece of information is inaccurate this will affect the course of the negotiations and in extreme situations it can lead to the negotiations breaking down altogether. In the present case a degree of confusion was caused in the early stages of the negotiations by the introduction of the necessity to advertise the role set out in a contract which the Complainant said that she would otherwise have been ready to sign. For her part, Ms. Norris was, it seems to me, doing her best to meet the Complainant’s demands for a pay increase within the parameters of her authority as she perceived it at the time. In the course of so doing it seems that the insistence on externally advertising the position was abandoned but there still remained the necessity for additional duties to be agreed so that the Respondent could obtain sanction for the pay increase requested. As this became clearer the Complainant appears to have reverted to the original discussions and subjectively perceived Ms. Norris’s efforts as being attempts to put conditions in the way of the simple agreement which she had initially made with the Complainant. Unfortunately for both parties the negotiations went completely off the rails, and it appears that as the events progressed the Complainant became increasingly suspicious of the Respondent to such an extent that she formed the opinion that the Respondent was attempting to engineer her removal from its employment, and she made statements to this effect on a number of occasions. It must be said that there appears to have been no objective justification for these suspicions or statements on the part of the Complainant, but it is beyond doubt that they escalated the dispute and contributed significantly to the situation where the negotiations did not generate an agreed outcome in the form of a pay increase.

The Complainant states that the process started with a binding agreement the conclusion of which the Respondent sought to frustrate by the imposition of conditions which she could not accept. On the basis of the foregoing analysis however, I find that the precise opposite was what actually occurred, that is to say that the initial conversations were no more than the commencement of negotiations which ultimately terminated without agreement having ever being reached. In such circumstances it cannot reasonably be maintained that the Complainant was properly entitled to the pay increase when no agreement was reached on this issue.

My conclusion based on my consideration and analysis of the evidence and submissions in the present case is that the Complainant has not established to my satisfaction that she was entitled (within the meaning of the Act) to the back-dated pay increase which she seeks. She may well have had, and likely continues to have, a strong sense that she is deserving of the pay increase but this does not translate into an entitlement for the purposes of the present claim under the Act. There being no entitlement, there can be no unlawful deduction and therefore the claim is not well-founded and I so find.

In making the above finding and being mindful of the continuing relationship of the parties I would like to clarify that both parties gave truthful evidence as to their respective understandings gained from their engagements with each other and the difference between their respective viewpoints is attributable solely to misunderstandings rather than misrepresentations or lack of good faith. I would venture to add, for what it is worth, that it seems to me as an objective observer, that the issues which gave rise to the present complaint could have been avoided by more structured negotiations prior to which the parties could have been better prepared. Such negotiations could have involved more than two individuals (with minutes being taken) and would have benefited greatly from better written communications at every stage.

In relation to the time limitation issue raised by Counsel for the Respondent, this was the subject matter of submissions made by the Complainant and she also dealt with the issue to an extent in her evidence. There is considerable force in the arguments made by Counsel for the Respondent to the extent that the claim is out of time. The Complainant made written submissions in relation to the issue as quoted above. The submissions suggested that the W.R.C. had decided the issue of the time limit which is incorrect as the decision was left to me. Also, it should be noted that the Respondent denied withholding information or engaging in delaying tactics as was alleged by the Complainant in the written submission quoted above.

In her evidence the Complainant said that she thought that she had six months which I understood to mean that she thought that she had six months from the date when the grievance concluded in August 2022. In the light of the decision in Dublin City Council v. Laurence Skelly DWT212, I had considerable doubt as to whether the Complainant’s understanding on the time limits applicable to her claim was legally correct. However, in this particular case submissions were made which touched and concerned events which arose between August 2022 and the date when the complaint was initiated in November 2022 which are not appropriate matters for an adjudicator to investigate and as a result, I must decline to make a ruling on this issue. In any event such a ruling is unnecessary as a result of my finding above on the merits of the claim.

CA-00053819-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 – the Complaint is not well-founded

Payment of Wages Act 1991 – Section (1) – Section (5) – Sullivan v Dept of Education PW2/1997 [1998] ELR 217 - Time Limit –  Workplace Relations Act 2015 – Section s.41(8) - Extension of Time Limit - Dublin City Council v. Laurence Skelly DWT212 -  Cementation Skanska (Formerly Kvaerner Cementation) v CarrollDWT 38/2003 – pay increase – pay negotiations – whether entitlement established