Complainant

Respondent

Parties

Patrick  Adair

Office Of Public Works

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047840-001

24/12/2021

The complainant submits that he signed a contract which included a clause regarding his entitlement to a point in the scale, but the respondent later refused to pay this. 

Preliminary Issue:

In response to the preliminary issue that the complaint is out of time, the complainant submitted that he was guided by his trade union who advised him to stay with the internal process and that he was aware of time limits.

Substantive issue:

The complainant submitted that he signed a contract on 20th December 2020, a condition of which was his entitlement to be paid the 9th point of the scale.  The complainant was originally offered the 8th point of the scale but following the complainant querying this, he was advised that he could be moved to the 9th point of the scale.  He was then very surprised on 15th January 2021 that he was not receiving the correct pay scale and queried it and was advised that a mistake had occurred and that the correct point of the scale for him was the 8th and not the 9th as per Circular 04/2020 Application of additional increments awarded to New Entrants at point 4 and 8 under the Public Services Stability Agreement 2018-2020.

The complainant submitted an email from HR where she advised on 30th November 2020 that he would be placed on Point 9 as he had previously spent time on Point 1 and Point 2 of the new entrant scale for the Engineer Technician and is still a new entrant grade Engineer Grade 3.  The complainant submitted that he could not understand why HR’s original interpretation could not stand and there did not appear to be appeals process for him regarding the matter internally as he was told the decision was final.  It was said by the complainant that the matter had caused him upset as he had been led to believe his pay would be greater and then respondent changed their mind without informing him in advance.

Preliminary Issue:

In response to the preliminary issue regarding whether the complaint was out of time, the respondent submitted that they had no further submission to make on this.

Substantive Issue:

It was submitted that Circular 18/2010 and Circular 04/2020 (the Relevant Circulars) outlines the rules for certain direct entry / new entrant grades in the civil service. They allow for additional increments for new entrants in certain limited circumstances. Any queries in respect of the Circulars, as with other pay matters for civil servants, are subject to clarification and approval of the Department of Public Expenditure and Reform (DPER).

The complainant commenced employment with the respondent on 03/04/2017 on point 1 of the Engineer Technician Grade 2 and progressed annually to point 5 of that Grade on 03/04/20 (Skipping point 4). The Engineer Technician Grade 2 is a direct entry / new entrant grade, which was affected by the Relevant Circulars. The complainant was then promoted to Engineer Technician Grade 1 point 1 (€45,667) in September 2020. Engineer Technician Grade 1 is not a direct entry / new entrant grade. The complainant was then promoted to Engineer Grade 3 with the OPW in November 2020.  By email dated 27 November 2020, OPW HR sought clarification from DPER in relation to the complainant’s starting pay at Engineer Grade 3.

DPER responded on the same date stating that, as the candidate spent time on point 1 and 2 of a new entrant pay scale (Engineer Technician Grade 2) and was now to be placed on a new entrant pay scale (Engineer Grade 3) he could receive a further additional increment and be placed on point 9. On 30 November, the OPW informed the complainant that, on the basis of DPER’s assessment, the complainant should receive a further additional increment and be placed on point 9 of the Engineer Grade 3 pay scale.

On 18 December 2020, the OPW sent the complainant a probationary contract for a one-year period with effect from 21 December 2020. The appointment was subject to the Civil Service Regulations Acts, the Public Service management (Recruitment and Appointments) Acts and any other Acts in force related to the civil service. The contract stated that the rate of pay offered will be €51,592 (9th point on scale) but also stated that the rate of pay may be adjusted from time to time in line with Government pay policy. The contract also stated that any overpayment of salary may be deducted from future salary payments and the complainant signed the form of acceptance on 20 December 2020.

In January 2021, the OPW was informed that the complainant had not been placed on point 9 of the Engineer Grade 3 pay scale. On 8 January 2021, OPW HR followed up with the People Point Pay Team to ensure that the complainant was receiving the correct pay. A staff member from the People Point Pay Team queried the matter with DPER Policy Unit. On 19 January, an employee of DPER Public Service Pay Policy confirmed that the complainant was not due an extra increment, as while he was originally hired as a new entrant on a new entrant grade (Engineer Technician Grade 2), he was not directly promoted from that new entrant grade to another new entrant grade. Instead, he was promoted to a grade that is not a new entrant grade (Engineer Technician Grade 1) before being promoted to his current new entrant grade (Engineer Grade 3). The Relevant Circulars confirm that anyone promoted from a new entrant grade to a non-new entrant grade is “ineligible” for the purposes of the Circulars and will not be granted an additional increment. This decision was confirmed by letter dated 22 January 2021 from Mr B of DPER to Ms Bourke of OPW.

On 25 January, Ms Bourke informed the complainant of DPER’s decision on the matter enclosing the letter from Mr Ryan referred to above. It was denied that the complainant was not notified in writing of a change to his terms of employment and denied that any breach had occurred.  The probationary contract, as with any appointment within the civil service, is subject to the relevant civil service legislation and circulars. The OPW are bound to implement the decisions of DPER on pay, as provided for in the Relevant Circulars, which are instruments made under statute. The OPW did so in this case and the complainant was notified of DPER’s decision as soon as possible following receipt of Mr B’’s letter and the respondent acknowledged the complainant’s disappointment and apologised for any inconvenience caused.

It was submitted that the OPW has acted appropriately in respect of the matter and there has been no breach of the Act.

Ms Kilduff gave evidence that she is not aware of any appeals process regarding the issues that the complainant raised.

The complainant submits that the respondent failed to advise of changes in his contract, deducted monies from him and that they did not follow the terms of his contract.  The respondent submits that they acted as required and apologised for the inconvenience caused. 

Preliminary Issue:

In response to whether the complainant had submitted his complaint on time, the respondent submitted that they were not raising this as an issue but that it would appear that the complaint was out of time.

I note that the complaint was submitted on 24 December 2022. 

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 8)

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As the date of submission of the complaint is outside the 6 months referred to above, the question arises whether reasonable cause has been shown for an extension of time.  The Labour Court outlined in TED223GL Entertainment Distribution/Ewelina Konarska the established tests for deciding if an extension should be granted for reasonable cause as determined by the Labour Court (DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll).  For reasonable cause to exist it is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay.

The explanation must be reasonable, but it must be applied to the facts and circumstances known to the claimant at the material time.  Failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the complainant should satisfy, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.  The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. It was stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.

It is clear that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.  Thirdly, as a matter of probability, I must be satisfied that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause.

It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.  Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.

In the instance complaint, the complainant submits that he had knowledge of timelines and that it was his hope that the matter would be resolved as he pursued it with his union.  I note therefore, that there would have been nothing preventing the complainant submitting his complaint during this time.  Having reviewed all the evidence and submissions, I find that the complaint was presented to the WRC outside of the statutory time limit and that the test for reasonable cause has not been met and I find therefore the complaint is unfounded.

Having reviewed all the evidence and submissions, I find that the complaint was presented outside of the statutory time limit and that the test for reasonable cause has not been met and I find therefore, the complaint is unfounded.

Terms of employment, pay, conditions of contract, out of time