Complainant

Respondent

Parties

Martin  Switzer

Dept Of Justice

Representatives

Emma Cassidy BL  Chief State Solicitors Office

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-00048309-001

20/01/2022

The Complainant was employed from as an Assistant Principal Officer with the Respondent from 1990 until 14th November 2021.

The Complainant was an Assistant Principal Officer with the Respondent. He was offered a position in the Border Management Unit which is responsible for immigration control at Dublin Airport. He lives in Kerry. He was approached to take the position and refused this.  He subsequently agreed to transfer to the position which has significant responsibility, and an average of 60-70 hours weekly including weekend work. He says he was given verbal assurances by the Head of the Border Management Unit and M Kirrane, Assistant General Secretary, that he would be given an on call/ out of hours allowance for the role of €18,023.00 per annum. Taking up the role required the Complainant to move to Dublin.

The Complainant relies on the UK decision of Carltona v Commissioner of Works [1943]2 All ER560 which found that a decision of an official of a government department is a ministerial decision. The Complainant says that he has a legitimate expectation to the allowance. He says there was no mention of the Department of Public Expenditure and Reform sanction being required. He worked an average of 10-14 hours per day including Saturdays and Sundays, the hours were greater than expected and far greater than his role in Kerry. He was never informed the allowance was subject to sanction by the Department of Public Expenditure and Reform. He was told a business case was submitted for the allowance on 1st February 2018. Notwithstanding, all the excessive hours spent at work, he later discovered the HR business case was not sent to the Department of Public Expenditure and Reform until 1st October 2019 some 20 months later. He says the HR Department were fully aware of the hours he was working. He received a letter on 24th November 2021 confirming payment of an out of hour allowance of €1,197.50 gross per annum.

The Complainant carried out the role from May 2018 until May 2020. He believed senior management that the allowance would be paid as agreed. He says the Secretary General has authority to make payments and do not need sanction. The Minister confirmed in parliamentary questions that the common out of hours allowance is €14,475.00 which is paid to persons working outside normal hours. There is no business case required. He paid significantly higher rent in Dublin than Kerry. He alleges a breach of S5 of the Payment of Wages Act 1991 that the Respondent employer has not paid the allowance of €34,849.00.

The Respondent denies the Complainant’s allegations of breach of the Payment of Wages Act 1991. The Complainant joined in 1983 and served as an Assistant Principal Officer from October 2010 until 31 May 2020.

The Complainant spoke to William Dwyer Principal Officer head of the Border Management Unit on a number of occasions prior to his transfer on 7th  May 2018 until 31 May 2020. The Complainant admits that he knew the allowance was not paid to anyone prior to his transfer to the Border Management Unit. The Respondent had to submit a business case for the allowance. The Complainant was on notice that the allowance was not guaranteed in circumstances where he sought to contribute to the application. Civil servants cannot negotiate bespoke remuneration outside of salary scales and allowances without sanction from the Department of Public Expenditure and Reform. The Complainant’s email to William Dwyer of 28th August 2018 confirms there was no guarantee the allowance would be paid at the level sought or at all, or that it was ever a term of acceptance of the transfer when he sought support for “pushing the case for the claim”.

The Respondent denies any agent of the Respondent gave assurances that the Complainant would receive an on call out of hours allowance of €18,023 per annum. William Dwyer gave evidence  that it is not in his gift to give the allowance, it required sanction. He was strongly supportive the allowance would be given. The Complainant was well aware of the process as an experienced civil servant working in the finance division.

The Complainant was frustrated with the amount of time the processing of the application was taking, the Head of the Border Management Unit followed up with HR and supported the application. The application was requested for review as the Complainant was a much valued member of staff of the Border Management Unit. The Respondent received sanction for €2,874.00 allowance per annum if the Complainant could meet the criteria of being required to attend out of hours at least 12 times per annum. The Department advised it was not of the view the amount was appropriate and requested review, but the Department of Public Expenditure and Reform advised that the sum sanctioned would not be increased on 17th June 2020. A pro-rata payment of €1,197.50 for six months was made to the Complainant on 8th June 2020.

The Respondent says the claim is not stateable as a matter of law. The alleged deduction must be from sums payable to the employee by the employer to which he is entitled under contract, and not to sums that a Complainant should have received retrospectively or otherwise. The Complainant relies on Henehan v Department of Education and Skills [ADJ00032070]. The WRC has no power under the Act to force an uplift or create an allowance level in addition to salary paid to the Complainant.

Without prejudice to the foregoing, the Complainant has grounded his complaint on legitimate expectation and the Carltona Doctrine. However, his own correspondence notes he was on notice this was not guaranteed. The WRC does not have jurisdiction to adjudicate on claims reserved for the Chancery Court. The Respondent relies on the decision of the Supreme Court Mr. Justice Fennelly in Glencar Exploration v Mayo County Council and says the complaint should be dismissed.

I have heard and considered the submissions and evidence of witnesses at the hearing.

The Complainant alleges breach of S5 of the Payment of Wages Act 1991 in the failure to pay an out of hours/on call allowance promised by senior members of management for his work with the Border Management Unit at Dublin Airport on 7th May 2018. The Complainant claims a sum of €34,849.00 was not paid on 23rd November 2021.

S2 of the Payment of Wages Act 1991 defines “wages” as “any sums payable to the employee by the employer in connection with his employment”.

Section 5 of the Act of 1991 prohibits an employer from making deductions except in accordance with the provisions of that section. These include:

“(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.”

Section 5(6) of the Act provides as follows –

“5(6) Where –

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions there from that fall to be made and are in accordance with this Act) or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except insofar as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on that occasion.”

Mr. Justice Finnegan in the High Court in Dunnes Stores (Cornelscourt) v Lacey [2007] ILR 478 said the first step to be taken is to determine the wages properly payable by the Respondent. The Complainant has given evidence that he was approached about the role. He received verbal assurances from the Assistant Secretary General M Kirrane and Head of the Border Management Unit William Dwyer that the out of hours on call allowance of €18,023 per annum would be paid. The application for the allowance was made in February 2018 prior to the Complainant commencing the role, but this was not sent by HR to the Department of Public Expenditure and Reform for twenty months.

It is evident from the correspondence the Respondents HR managers and management were well aware the Complainant was working 12 to 16 hours per day, including Saturdays and Sundays. The Complainant submitted evidence of his working hours which show upwards of 60-70 hours per week as part of the business case submitted to the Department of Public Expenditure and Reform. I accept the Complainant’s evidence that he was promised the on call out of hours allowance of €18,023.00 per annum for extra hours and weekend work. The Complainant was aware a business case was being submitted for the allowance, as the allowance was not sanctioned initially. However, as a result of the delay in progressing the business case, the decision on the allowance was not made until March 2020. A decision was not given within a reasonable period. The Complainant incurred additional cost renting in Dublin, completed onerous additional hours, and did not participate in a competition for another role as a result of the delay. The common allowance for out of hours on call work for the continuation of maintenance and delivery of service in the Department of Justice is €14,475.00.

Lord Denning in Amalgamated Investment & Property & Co Ltd v. Texas Commerce Investment Bank Ltd [1982] QB 84, 122 stated:

“When the parties to a transaction proceed on the basis that an underlying assumption - either of fact or of law - and whether due to misrepresentation or mistakes makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands”.

I am satisfied that payment of the on call out of hours allowance was an integral part of the agreement by the Complainant to the role.

In the circumstances, I find the wages properly payable to the Complainant include the on call out of hours allowance for the period May 2018 until March 2020 of €34,544.41 less €1,197.50 already paid, giving a sum payable of €33,346.91. The complaint is well founded and I direct payment of €33,346.91 by the Respondent to the Complainant.

The complaint is well founded and I direct payment of €33,346.91 by the Respondent to the Complainant.

On call allowance, legitimate expectation, assurances, wages properly payable