Complainant

Respondent

Parties

Neil  Cronin

The Revenue Commissioners

Representatives

  Self-represented

Mr. Cathal McGreal BL instructed by Ms. Noreen Collins, Solicitor (internal, Revenue Commissioners)

Act

Complaint Reference No.

Date of Receipt

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

CA-00054269-001

19/12/2022

In attendance:

For the Complainant

Neil Cronin – self-represented

For the Respondent

Mr. Cathal McGreal BL

Ms. Marie Collins, Legal section of the Revenue Commissioners.

Ms. Nora O’Brien – witness – mixed role - Higher Scales unit, Industrial Relations role, the Revenue Commissioners

As per the Complaint form:

“I retired from the Revenue Commissioners on 12/10/22 after nearly 42 years’ service. On 17/10/22 they issued a circular about upgrades at AP level and used the seniority list on 18/10/22 for this purpose and excluded me as I had retired.

They had agreed the mechanics of this with the union.

My complaint is that the decision was made before I retired and had I known, I would have postponed my retirement to qualify for the upgrade as it would increase my pension, termination lump sum and would have been backdated. I feel they had a duty of care to advise me of the upcoming upgrades (4 working days) and I suffered a financial loss, as a result.”

Mr. Cronin represented himself and gave evidence at the hearing:

He outlined that his case was that he retired on October 12th, 2022, after forty-two (42) years as a civil servant. At the time of his retirement, he was at Assistant Principal (AP) level in the civil service. He outlined that upgradings for APs to AP Higher were coming down the tracks and if he had retired a week later, on October 19th, 2022, he believes that he would have qualified for inclusion on the scheme, as, it was his submission, that he would have been on the seniority list issued on October 18th, 2022. He outlined that inclusion on the scheme – and upgrade to AP Higher – would have made a material difference to his pension, to the lump sum he received upon retirement, and would also have been backdated.

He explained that the eligibility criteria had changed over the years, that previously up to 2015, it was almost exclusively based on seniority, at that point - he would have been right at the edge, on the basis of seniority. Then, a change occurred - a competitive system was introduced.

He said that when he retired, he found out that there was an element in that upgrading agreement between the union and Revenue, which pertained to seniority – some people got it on that basis.

He said that he was not aware of it – that it was a new development; that neither the union nor Revenue (his employer) had informed him.

He explained that upgrades which were awarded were backdated to January 2022.

He said that the essence of his case is that he was an employee up to  October 12th 2022 – that he had rights and responsibilities up until October 12th, as an employee.

He said that he could have chosen not to retire, i.e. that he had full service but had not yet reached mandatory retirement age. He had elected when to go. It was his evidence that had he been aware that if he had waited one more week to retire, he would almost certainly have had a financial gain, and he would certainly have chosen to do that. He said that it would have made no sense not to delay his retirement, by a week, in the circumstances. 

He was of the view that if any of his colleagues had known, they would have let him know. So, it was his opinion that his colleagues also did not know, as no-one brought it to his attention, informally either.

He expressed the view that his employer had a duty of care towards him up to the end of October 12th, and that he should have been informed.

On Cross-examination – Mr. Cathal McGreal BL

On cross-examination, it was disputed by the Respondent that it had a duty (or indeed an ability) to notify the Complainant in the manner in which he sought to be notified, in relation to something which was the subject of ongoing collective negotiation between the Department and union, up until the point where agreement was finalised. Mr. Cronin re-iterated his view that an employer has a duty of care to act in the best interests of their employee. He suggested that he was “probably the only person impacted by this.” He clarified that he was a member of the union, but that he was not aware that there was “an alteration to include persons like myself.” It was disputed on behalf of the Respondent that the upgradings simply related to seniority and it was put to him that “there was always going to be an assessment of performance – it goes back to efficiency.” Mr. Cronin said that it was “almost certain” that he would have received it, that he was “at the very top” in terms of seniority, that he had “an unblemished record”, that he was “never late”, that he “never had a disciplinary.” It was put to him that it was not awarded simply on seniority, that the rules governing eligibility required more of an assessment than just seniority.

He clarified that he had no difficulty with Ms. McDonagh’s emails, when it was put to him that they were at all times courteous and professional, which he fully accepted. The only issue he had was that he was not notified by his employer of the upcoming re-grading, which he believed he would have received had he been notified and had he postponed his upcoming retirement by one week, in order to be included. 

It was put to him that October 13th, 2022, was the effective date of his retirement but he had put in his application on September 2nd, 2022. He said that he was “asked to give as much notice as possible – people knew I was at the edge.” He said: “I could have changed my mind on October 12th and I would have been entitled to do that.”

It was put to him that in terms of these allocations of funding – negotiations are collective – between the Department and the union, the Association of Higher Civil and Public Servants (AHCPS), that Ms. O’Brien had emails that were agreed on October 17th, 2022, and it was therefore not a situation where the Complainant could have been told that this was something which would definitely be happening; and that if the Complainant was correct in his assertion that he fell into a category of people who should be notified in respect of something which was a potential/possibility, that there were several other potential categories of people who would also have to be notified and that was simply not feasible/workable (and that the Respondent did not and could not have a legal duty to do it.)

It was put to the Complainant that there was an email from Ms. Orla Campbell, Assistant Secretary, agreed with the AHCPS on October 14th 2022 that the process could start; and on October 17th was sent out, that there had been a lot of back and forth, and canvassing since January 2022; that notice was sent out to anyone who was eligible.

The Complainant said: “I suspect I was the only one effected at my level of service (can’t be 100%).” He said: “I’ve been a civil servant for forty-two (42) years - there is no way a Circular issues on the 17th and was published and implemented on the 17th. It would beggar belief to suggest that. That’s not how Revenue works.”

It was also put to the Complainant that, under the Payment of Wages Act 1991, a deduction in wages has to be unlawful for his claim to succeed.

It was put to him that it is not that easy to change your retirement date, that there are rules (Circular) governing that. The Complainant disagreed. He said that he had seen colleagues do it in the past, right up until the last day they were due to retire. He said that it was his understanding that he had the opportunity to change his mind. He disagreed that what was set out in the Circular/rules was how it applied on the ground, saying: “You can tell me the law but my working understanding was that I could change it [his notified date of retirement] up until the last day”, adding that he was “cautious by nature” and had “checked into it before signing anything.”

As per the Respondent’s written submissions:

The Respondent submits that the easiest way to understand the substance of this case is to look at the emails that passed between the Complainant and the Respondent from 4th November to 1st December 2022. (Copy of emails submitted.) It submits that these are emails from the Complainant asking why he had not been included in a process governing assignment to the Assistant Principal Higher Scale of pay and the Respondent’s consistent reply was that he was not eligible because he had retired by the time the process governing eligibility for assignment to the Higher Scales commenced and by the time that subsequent offers were made. 

The Respondent submits that the Complainant, would not automatically have been assigned if he had not retired. Therefore, his claim is based on the hypothetical scenario that he would have been assigned.

Negotiations were underway throughout 2022 when he chose in September 2022 to retire. The AHCPS was actively canvassing its members on the issue and there was quite considerable engagement by members. (Contemporaneous documentation submitted.)

The Respondent submits that it is simply not arguable that the Respondent is obliged, as a matter of law, to consult with all potential assignees before agreement in principle is reached – or afterwards, when eligibility details are determined. It cannot be the case that in collectively negotiated agreements, the Respondent must agree a date of potential assignment that takes account of all resignations, retirements, those who leave on Civil Service Mobility, promotions, or deaths in service. That is ultimately what this Complainant seeks to argue. 

The Respondent submits that from the 11 emails between the Complainant and the Respondent from 4 November to 1 December 2022, it can be clearly seen that this is a case simply about timing. It is a case in which the Respondent could not choose an implementation date to ensure that nobody would miss the date by a small margin.

The Complainant submitted his notice to retire on 2 September 2022 effective 13 October 2022. The Complainant’s retirement took effect before a notification to staff issued confirming the process that assignments to the higher scales would be made [Copy of Notification submitted].

The notification stated that following a review and in collaboration with the AHCPS that a proportion of staff would be assigned to Higher Scales. These would be on a seniority/suitability basis with the remainder assigned on a merit basis by application at the Assistant Principal Grade. That is a fact from which the Respondent cannot resile. It is a fact that the Complainant cannot change through these proceedings. He was not eligible. However disappointing it is for the Complainant, this was never an unlawful position for which the Respondent must answer in any way. It is not an unlawful deduction of wages. 

The Single Complaint Form

The preliminary details entered by the Complainant on the Single Complaint Form are largely agreed. The following specific adjustments should be made from the information available to the Respondent: 

-          The Complainant sought to correct his complaint by correspondence on 15 February 2023.  It is accepted that the complaint was received on 19 December 2022 and is essentially set out on page 29 of the original Single Complaint Form included here in long form in the Respondent’s booklet. 

-          The last day of service of the Complainant was 12 October 2022 so his retirement was effective as of 13 October 2022 and not 12 October 2022. This was the decision of the Complainant. He was obliged to give one month’s notice to the Respondent (on 2 September 2022) as required by Circular 10/2012, which sets out: “Section 4 of which provides “… Staff at Assistant Principal level or equivalent grades and below are required to give one month’s notice of intention to resign/retire from the Civil Service. 

(i)                   The last day of service must be clearly indicated.

(ii)                 The notice of resignation/retirement must be unconditional.

(iii)                A notification of resignation/retirement may not be withdrawn on or after the date indicated as the last date of service.”

(Copy of the Circular submitted; Copy of the Complainant’s Exit Form and internal correspondence processing the retirement application submitted.)

-          It is not possible to quantify the hypothetical amount of the Higher Scale AP uplift as each case is calculated individually depending on current points on pay scales, sometimes time spent on that point and the point on which the person would be placed on the Higher Scale pay scale. 

Background

The Association for Higher Civil and Public Servants (AHCPS) had been in communication with their members about assignment to Higher Scales subsequent to feedback it had received from its membership at the conclusion of the 2019 and 2020 processes governing assignment to Higher Scales.

The AHCPS made a submission to the Respondent on the assignment to Higher Scales on 19 May 2022. The process governing assignment to Higher Scales was under ongoing review during 2022 and good progress was being made with a view to agreement. This is clear from the following:-

-          Survey in January 2022 - see Correspondence referring to AHCPS AP Member Survey PCW 1% Higher Scales Assistant Principal Revenue Branch.

-          AHCPS Revenue Branch Meeting (Motions for Annual Delegate Meeting) on 11 March 2022 which included this issue.

-          Indications that the survey and motion received considerable (positive) feedback – see ‘AHCPS Branch Update’ (17.11.22).

(Copies of relevant supporting documentation submitted.)

Whereas the Complainant submitted his notice to retire on 2 September 2022, an agreement in principle was reached with the AHCPS on the process for assignment to Higher Scales on 28 September 2022. (Copy of Correspondence submitted.)

To be specific, Ms. Orla Campbell, Assistant Secretary, had approved the commencement of the process of assignment to Higher Scales on 14 October 2022. This was confirmed with the AHCPS on 17 October 2022. An email was also issued to staff advising that a proportion of the assignments would be assigned on a Senior/Suitable basis with the remainder to be assigned on a merit basis by application. Those staff eligible for assignment to AP Higher Scales on a Senior/Suitable basis were advised that they would be notified of the same over the next two weeks, on 17 October 2022. (Copy of emails submitted; Copy of Template Letter submitted;)

The Respondent submits that it is very clear that the assignment was not automatic. (Copy of the template email sent to Assistant Principals on 18 October 2022 to offer them the Higher Scales on a Senior/Suitable basis submitted.)

The Complainant retired on 13 October 2022. The Respondent submits that this date was fixed as early as 2 September 2022. (Copy of emails/correspondence submitted including email of P. McGuinness Revenue Commissioners Superannuation Section Corporate Services Division.)

The Complainant contacted the Respondent about seniority upgrades in Revenue on 4 November 2022 which led to the exchange of emails with Ms. Niamh McDonagh from the Higher Scales Unit until 1 December 2022. (Copy of emails submitted.)

No contractual agreement on which to ground Payment of Wages claim:

The Respondent submits that for any claim under s.5 of the Payment of Wages Act 1991 to succeed, there must be an unlawful deduction. Here, there was a claimed failure to increase the Complainant’s pay. No issue is taken with the semantic meaning of deduction. Rather it is submitted that the Complainant had no entitlement to the increase in pay as he had retired before assignment to Higher Scales was offered to potential eligible recipients.

The Respondent submits that there is no statutory or contractual agreement or other legal entitlement on which the Complainant can rely for the payment of salary at Assistant Principal Higher scales which he claims was the unlawful deduction. The Complainant was not eligible for consideration on assignment to Assistant Principal Higher Scale on 17 October 2022 as he had retired and was no longer serving in the eligible grade on that date. The Complainant had retired before the notification date of implementation of the agreement by which consideration of assignment to Assistant Principal Higher Scales commenced.  

Contractual context

The contractual context for those who did receive, and were entitled to, be assigned to Assistant Principal Higher is the following. Pay increases are made within the remit of the Department, subject to the Finance Minister pursuant, to Regulation 17 of the Civil Service Regulations Act 1956 as amended which prescribes as follows (with emphasis added): that the Minister is responsible for the following matters:-

(a)   The regulation and control of the Civil Service,

(b)  The classification, re-classification, numbers and remuneration of civil servants,

(c)   The fixing of-

(i)     The terms and conditions of service of civil servants, and

(ii)   The conditions governing the promotion of civil servants.

The background of the assignment to Higher Scales is Finance Circular Reference Number E109/39/99 from 23 April 1999 which was essentially an allocation of the equivalence of 1% of funding available for salaries at Assistant Principal Grade on a ‘selective basis’ and not an ‘across the board basis’ subject to future collective negotiations (Copy of Circular submitted.)

It was on foot of negotiations contemplated by the Circular that the process for assignment to Higher Scales in Revenue for 2021 was under review during 2022 (Copy of email from AHCPS to its members dated 12 January 2022 submitted.)

Negotiations were ongoing throughout 2022 in relation to the process for allocating eligible staff to Higher Scales. This included a proposal put by the AHCPS to Revenue in May 2022.  An agreement in principle (an incomplete contract) was reached on 28 September 2022 (Copy of email submitted.) and this agreement was confirmed to the relevant grades and the Union on 17 October 2022. It was not until 17 October 2022 that staff were emailed indicating that assignment to Higher Scales would be ‘offered’ to recipients. (Copy of notification to staff submitted.)

The Respondent submits that it is important to note that eligibility for assignment to Higher Scales at the Assistant Principal Grade on a Senior/Suitable basis from 17 October 2022 was not an automatic entitlement. It involved identifying the proportion of staff who were deemed eligible on a seniority basis from a list of all serving Assistant Principals on that date, then writing to those eligible staff advising that they were being considered for assignment to the Higher Scale subject to the following: 

•                Having achieved a satisfactory rating in PMDS, 

•                Satisfactory general conduct, and  

•                Suitability from the point of view of health with particular regard to sick leave record satisfying the provisions of Circular 5/2018.

(Copy of sample letter that issued to eligible staff submitted.)

The retirement date of the Complainant was fixed from 2 September 2022 effective 13 October 2022 well before the notification date to all serving Assistant Principal staff that the process for assignment would include a proportion on a senior/suitable basis and a proportion on a merit basis by application. Again, that notice issued on 17 October 2022.

The Respondent submits that it is also important to note that the agreement with the Union side on 28 September 2022 was not a complete contract. It was an agreement in principle. The agreement in principle was not, for example, self-executing or immediately effective nor did it give an automatic entitlement to any staff member. Practically speaking it could not have been. There were details to be worked out and specific issues to be ascertained and communicated. Even if these were ascertained (or ascertainable) at the time of the Complainant’s retirement there was the crucial matter of the notice to those who were eligible to potentially be assigned to Higher Scales on a seniority basis.  Eligibility checks had yet to be formally completed as evidenced in the sample ‘offer’ to an eligible Assistant Principal on 18 October 2022. In any event, the language of the emails leading to the agreement is not consistent with a concluded, self-executing contract on 28 September 2022.

Contracts (and more particularly incomplete contracts) are commonly not self-executing or effective on the day of agreement in principle. For example, employment contracts do not automatically commence service on the date of the agreement to be employed. There is a separate issue of when employment actually commences. Here the negotiations had agreed in principle on what certain of the terms of the assignment to Higher Scales would be when the process for allocating the associated budget for eligible recipients to be determined at a later date. It was envisaged that the process would be finalised – that is effective –  for identified and notified potentially qualifying individual recipients at a future date within the calendar year (see correspondence below to this effect). The notification date was not known and not expressed at the stage of agreement in principle.

It is trite law that a contract is a concluded contract where “everything intended to be covered by the agreement has either been expressly or impliedly agreed”. (As per Supermac’s Ireland Ltd v Katesan (Naas) Ltd [2000] 4 IR 273, Supreme Court, per Geoghegan J, at 288.)

Moreover, 

“The question as to whether a term is material and must be agreed in order that a concluded agreement has come into existence depends upon a subjective assessment of the facts with particular regard being had to what the parties themselves considered to be material terms requiring express agreement.” (As per Globe Entertainment Ltd v Pub Pool Ltd [2016] IECA 272 at para 44.)

It is evident from the negotiation correspondence that it was understood by the Respondent and the Union Side that the agreement would be finalised within the calendar year, 2022. This is entirely inconsistent with any view that the agreement was self-executing in September 2022. On 22 September 2022, Ms. Nora O’Brien wrote to the Union Side stating:

“As you know, Revenue is keen to progress this process with a view to finalising within the current year. I would therefore be grateful for your early response and of course, I am available to meet as necessary.” (Emails of 22 September 2022 17:24. Page 63 of the Respondent’s Booklet)

Collective negotiations are not and cannot be contingent on individual retirement plans:

The Complainant appears to suggest that the parties to the collective negotiations should have been mindful of those who might narrowly miss the date of implementation of the agreement. With respect, this is not a matter typical of collective negotiation. It is more a matter of individual negotiation. The Respondent submits that it is not an approach which lends itself to getting any agreement across the line and is simply a reality of the collective focus of collective negotiations. Individuals sometimes necessarily lose out where the interests of the collective are under discussion.

The Respondent submits that on a purely practical basis, if the negotiations were to be contingent on individuals and their particular circumstances (and retirement plans), an agreement could never be reached as individual circumstances can conflict in many ways, they can change and are cyclical. In addition, the application for or ‘choosing’ of a particular retirement date would become very contentious, clustered, and unworkable. If further support for the logic of this argument is needed, section 4 of Circular 10 of 2012 is very specific on the requirement of certainty in the date of retirement. It must be fixed and unconditional. It is provided that “The last day of service must be clearly indicated. … The notice of resignation/retirement must be unconditional … A notification of resignation/retirement may not be withdrawn on or after the date indicated as the last date of service.” 

The agreement was not directly with the Complainant but with the Union:

The allocation of eligible Assistant Principal grades to higher scales in this case is a collectively agreed allocation of the 1% budget available for AP salaries subject to the conditions contained in the 1999 Finance Circular, not an individualised agreement. Nor were the negotiations focused on or concerned with individual retirement dates so that a particular civil servant would be eligible. It is very clear from the 1999 Circular that what was envisaged is an agreement with the union side and that other claims – such as individual claims – would not arise or could not be grounded on these local agreements. This is no more than common sense as were it otherwise, it would be inimical to partnership and the collective process. The Circular provides as follows: 

“•          The intention is that, as far as possible in a spirit of partnership, there would be agreement between Departmental managements and the local branches of the unions in relation to the utilisation of the 1%.

•                     Arrangements for the joint monitoring of ongoing utilisation of the 1% should be put in place in Departments.

•                     It is accepted by unions and Departmental managements that the circumstances under which particular upgradings or allowances are granted to individual members of staff under these arrangements will not be used as a basis for, or in support of, other claims.” (Final 3 bullet points, final page. Emphasis added)

The agreement was forward-looking and not intended to reward service

The purpose of the increases is clear from the terms of the 1999 Circular and is not consistent with the Complainant’s claim. It was forward-looking and not intended to reward long service. The Circular provides as follows:

“Departments should initiate discussions with AHCPS and IMPACT locally with a view to exchanging views and jointly considering proposals in relation to how the 1% might be spent in a manner which recognises and contributes to improved efficiency and effectiveness as envisaged in the agreement.” (3rd bullet point, final page. Emphasis added)

The added emphasis shows that this was a forward-looking measure and one based on the efficacy of current personnel looking forward. It was not meant to be a reward system for past service or long service but rather to encourage future efficiency and effectiveness. It is for this reason that PMDS, conduct and sick leave were considered in suitability for allocation.

The timing of the agreement of the Complainant’s retirement

The timing of the agreement between Revenue and the AHCPS is a matter with which the Complainant takes issue. The actions (and progress) of the parties to the negotiations in 2022 may not strictly speaking be relevant, but the following dates and documents show that they were typical of any negotiation. There was back and forth and with some expected and normal delay but this was never of individual focus or ever concerned or intended to adversely treat the Complainant. It was focused on the collective and that is simply a reality of collective negotiation. The timeline for the negotiations is as follows (Copy of supporting documentation submitted.):

23.04.99 The original circular made on foot of the Programme for Competitiveness and Work dates back to 1999: Circular Reference no. E109/39/99 This document immediately refers to local bargaining arrangements. That is what this allocation of pay is: an agreement under local bargaining arrangements. 

12.01.22 AHCPS canvassed its members in relation to the process for assignment to Higher Scales.

19.05.22 AHCPS proposal for the process governing assignment to Higher Scales.

19.08.22 Nora O'Brien of Revenue referred internally to matters on which there was provisional Revenue agreement on 2021 AP HS assignments.

19.08.22 Nora O’Brien reverted to the Union with Revenue position.

20.09.22 The Union Side apologised for the protracted nature of the negotiations.

22.09.22 Nora O’Brien reverted to the Union Side with comments on its counterproposal.

28.09.22 The Union Side correspondence received by Nora O’Brien indicated agreement in principle.

6.10.22 Nora O'Brien indicated that the assignment process will be started.   

14.10.22 Three internal Revenue emails show quick progress.

14.10.22 Agreed wording of email to be sent to staff.

17.10.22 Revenue email Assistant Principals and their managers confirming process as agreed to be commenced in coming two weeks. Revenue email to Staff stating "We will be contacting those to be offered AP HS on a Senior/Suitable basis over the next two weeks, so there is no need for you to make contact in this regard." (Copy of email submitted.)

Justiciable period is a period of 115 days 

Without prejudice to the foregoing, the Complainant retired on 13 October 2022 and this claim was lodged on 19 December 2022. There has been no application, there is no evidence and there is every counter indicator against an extension of time for reasonable cause. This means that the justiciable period is a period of 115 days from 20 June to 13 October 2022. The definition of wages in s.1 of the Payment of Wages Act 1991 makes it very clear that it does not apply to pension payments.

At the hearing

At the hearing, the Respondent proceeded by way of oral submission and proffered Ms. Nora O’Brien, of the Revenue Commissioners, as a witness if any clarification was needed, as it was the Respondent’s position that there were no facts in issue. Mindful that the Complainant was unrepresented, and that the Adjudication Officer’s jurisdiction extends to the narrative of the complaint form, as it is not a statutory form [in line with the Supreme Court case of County Louth VEC V. Equality Tribunal (Notice Party Mr. Pearse Brannigan) [2016] IESC 40], the Adjudication Officer sought clarification, on evidence, on one point in relation to how the system operated in practice, in relation to the awarding of upgradings. Ms. Nora O’Brien gave evidence on that point.

Evidence of Ms. Nora O’Brien, of the Revenue Commissioners.

She outlined that that the process was not automatic, that of the AP upgradings available, an agreed number (agreed with the union) were to have a seniority component to how they were allotted. She said that approval was given by the Assistant Secretary, Orla Campell, for the process to commence. The list ranking those people was compiled and they were then invited to apply - emails were sent to the number of people who were next on the seniority list, notifying them of their eligibility, and inviting them to apply/offering them the opportunity to apply. If those people then submitted an application, that application was assessed based on the applicable criteria.

She also clarified that no-one had received phone calls – there had been a suggestion by the Complainant that some people were contacted by phone. She explained that the correspondence was by email.

Oral Submission

Mr. McGreal BL, summed up the Respondent’s position, as follows: He said that the complaint filed does not have anything to do with a breach of the law, that a Payment of Wages claim – which is what is in question –  pertains to the Complainant’s entitlement to be paid. He submitted that the Circular, which occurred on foot of a collective process, was bargained for and negotiated for between the Department and the union, and only came to fruition after the Complainant had retired. He said that the Complainant is submitting that he had a legal entitlement to be told, but there is no such legal entitlement; and in fact, it is not something that is capable of being done from a practical perspective – that it would impose far too wide-ranging a duty, in terms of leavers/transferees etc., so as to be entirely unworkable, but in any case, there is no such legal entitlement.

He submitted that the allocation of funding for the upgradings is based on agreed criteria and it is as much about efficiency as anything else and is future-focused, not simply based on seniority. He said that there was a consultation process, that it would simply be impossible to finalise a collective bargain in such a way that nobody missed the date by a small margin, that that is the harshness of a collective perspective when a certain individual’s position was not taken into account, but that an individual’s position is not part of that negotiation, or consultation - that in law, that is not an obligation on either side. He submitted that to avoid that, simply from a policy perspective, and certainly from a legal perspective is not possible.

He acknowledged the Complainant’s frustration and set out that that had also been acknowledged in the thread of eleven (11) emails with Ms McDonagh. He said that the Complainant had been treated with courtesy and professionalism in those emails, which the Complainant had also acknowledged.

He submitted that for the Complainant to have made out a case which the Respondent had to answer, in law, it would have to have been automatic [that he would be upgraded], and it was not. It was based on eligibility, it was contingent and hypothetical. Ms. Orla Campell, Assistant Secretary commenced the process on October 17th - all of this occurred after the payment of wages rights as an accrual had expired because the Complainant was no longer an employee.

He submitted that the Complainant was mistaken in his understanding of how the process worked and that his frustration was coming from that misperception. He said that the facts froze on his retirement. The process was not automatic. Who was eligible to apply based on the seniority component was drawn from all serving assistant principals on that date, they were then notified of their eligibility to apply by email, i.e. given the opportunity to submit an application, then they had to apply and be subject to the assessment process based on the agreed criteria.

Very comprehensive written submissions were made in this case, on behalf of the Respondent.

However, this case centres on a net point - the key phrase is “invited to apply.”

If the Complainant had:

1. Been in employment at the relevant date and

2. Ranked sufficiently highly based on seniority, only then would he have been “invited to apply” to submit an application for assessment, based on the criteria as set out, to receive the upgrade.

If, having received an invitation to apply, the Complainant elected to submit an application for assessment, his application would then – and only then - have been assessed on the basis of the applicable criteria.

The Complainant was not in service at the relevant date and, therefore, the question of him being “invited to apply” to have his application assessed did not arise, as he was ineligible to receive an invitation, as he was no longer in service.

The Complainant has sought to draw a direct line where one does not exist. He has sought to draw a direct line between staying in service and being granted an upgrade as a matter of course; and on that basis, submits that his employer should have informed him that the granting of an upgrade to him was imminent, and he would have postponed his retirement in order to receive it. But, in fact, that is not how the system works – there are several intervening steps.

For completeness, I am satisfied that the Complainant has not made out a case, under the Payment of Wages Act 1991.

I find for the Respondent.

I find for the reasons set out above that this complaint under s. 6 of the Payment of Wages Act 1991 is not well founded.

Civil Service; Retirement; Upgrade; Eligibility criteria; Notification;