ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050682

Parties:

Complaint:

Date of Adjudication Hearing:  21/10/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 6 of the Payment of Wages Act 1991, following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant claims that she is not paid the correct rate of pay in accordance with the provisions of her contract of employment.

Summary of Complainant’s Case:

The Complainant commenced her employment on 05/07/2023.  Her contract of employment stated that she was on point 2 of the City of Dublin Youth Services Board (CDYSB) Scale.  She therefore expected to receive increments on an annual basis subject to funding.  However, this proved not to be the case.  On her return from Maternity Leave in August 2023, she discovered that the employee who covered for her maternity leave was on a higher rate of pay which was on the CDYSB pay scale.

The annual salary for a senior youth worker is €53,891.  The Complainant discovered that a youth worker working on a lone project is entitled to the senior youth worker scale.

In 2022 the Respondent unilaterally introduced a pay scale which was lower than that provided for in the contract of employment. It is incorrect for the Respondent to state that there was no change in the rate of pay for employees when the new scale was introduced as the Complainant commenced her employment in 2013 on point 2 of the CDYSB scale.

The Respondent holds a contradictory position where on the one hand they deny that the Complainant is a Section 39 worker and in 2021 Section 39 workers were awarded an increment and the Complainant received this with applied retrospection.

The losses are submitted as follows:

CDYSB Youth Worker Scale top of scale point 6:                €52,272

CDYSB Senior Youth Worker top of scale point 5:              €58,795

WSTCYS made up scale point 13:                                          €46,203

The complainant’s salary in the cognisable period:           €43,675

It is submitted that the shortfall in wages constitutes a deduction under section 5 (6) of the Act.

Summary of Respondent’s Case:

The Respondent is a community youth-based service providing various support to those requiring their services. They have been providing those services for the past fifty years. They are not an ETB based organisation.  She is employed as a community drugs worker. She is not nor ever has been a youth worker be it senior or otherwise.  she alleges that her rate of pay should have increased over the period of the employment and that it should replicate the circular published by the Minister in 2018 & 2023. She refers that she is a s.39 employee.  The Complainant is not a Section 39 worker.  The salaries of all frontline staff are based on the City of Dublin Youth Services Board Youth Worker Salary Scale, in order that the organisation would have a recognised national pay scale to refer to in setting salaries and to use as a guide for incremental pay progression (only when funding permits).

Upon her commencement, the Complainant’s salary amount was based on Point 2 of the CDYSB Youth Worker Salary Scale in use at that time (2010/2011 scale); €31,070. Her Contract of Employment at clause 6 (Remuneration and Pension) states the gross salary payable and clearly identifies where the salary figure came from; “….as specified on the CDYSB Salary Scale (Point 2).

The Complainant returned to her post following Maternity Leave on 12th June 2023.

The rate of pay for the worker who covered the Maternity Leave was higher but that the reason for this was length of service (5 years longer than The Complainant) and experience level at Job Offer in 2008.

On Thursday 3rd August. The Complainant’s Manager Ms McB explained to The Complainant that there was a fair basis for the difference in pay of the worker who covered her Maternity Leave. During this conversation, The Complainant asked how could she move up the salary scale. Ms. McB replied that the only way staff can move up the scale is if the funders give us the financial resources to implement increments and reminded The Complainant that this is clearly stated in her contract of employment and the staff handbook.

Ms. McB further spoke of the ongoing efforts of the organisation to advocate with funders for improvements in staff salaries but that the organisation simply cannot afford to pay staff more if the money is not there from funders.

In August, 2023 SIPTU wrote to the Respondent seeking that the Complainant, due to her service and experience along with being responsible for her team, the increment that she should be is point 10 of the Senior youth Worker Scale, which is. € 53,891, and as a section 39 worker Mrs Keating is entitled to receive this rate of pay.

In line with the respondent’s grievance policy and procedures, an exhaustive internal grievance process was held in respect of The Complainant’s issue.

The Complaint Specific Details as stated by the complainant is that she is employed a s.39 employee and that she has never received the correct salary scale for the position she holds. She further states that there has always been a shortfall in her salary in breach of the Act of 1991.

To clarify at the outset, The Complainant is not employed as a s.39 employee.

The funding stream for The Complainant’s Project, Co. Waterford CBDI East, comes from the South East Regional Drug and Alcohol Task Force (SERDATF) and this is the funder stated in her contract of employment.

The Complainant and 3 other staff members (1 Community Drugs Worker and 2 Drugs Outreach Workers) are employed under funding received from SERDATF.  The Complainant is one of WSTCYS’ full team of 9 Drugs Workers. 4 of the staff posts, as noted above, are funded through the SERDATF. The other 5 posts are funded through the HSE (Section 39).  In order to ensure fair treatment of all 9 of our drugs workers, the respondent drew no distinction for all practical purposes between SERDATF-funded and Section 39- funded Drugs Workers. In all advocacy with funders towards improving the terms and conditions of staff, the respondent considers their drugs workers as one sector, one team.  The Complainant and her three SERDATF-funded peers were included in the Section 39 Pay Restoration in 2021 and more recently in 2024. The respondent has never presided over a scenario within which The Complainant and her 3 peers in the SERDATF grouping could be disadvantaged in the context of their terms and conditions, purely on the basis of the funding stream for their post.  At the outset of the Grievance process documented above, SIPTU stated that the Complainant, as a Section 39 worker, was entitled to receive a rate of pay as a Senior Youth Worker in line with the circular issued by the Department DoES Circular cl2023-0009-R.

While the substantive defence against The Complainant’s complaints does not rely on refuting her assertion that she is a Section 39 employee, the respondent nonetheless considers it important to be clear about the employee’s status, for the avoidance of doubt and to demonstrate their commitment to fair treatment of staff irrespective of which Government body funds their posts. 

The Complainant states that she has never received the correct salary scale for her position.  The Complainant’s position is that the City of Dublin Youth Services Board salary scale is noted on her Contract and that she is therefore entitled to be paid on that scale.  At point 6 on the Contract of Employment, Remuneration & Pension, The Complainant’s rate of pay is described as follows;

“The gross salary payable is €31,070 as specified on the CDYSB Salary Scale (Point 2)”. 

Staff salaries are based on the CDYSB Salary Scale. The intention of the remuneration statement in contracts was to clearly identify for workers that their pay is based on a recognised national scale for Youth Workers so there is a reference point for staff in understanding the basis for their salary figures. This is not the same as staff salaries being linked to this scale.

This scale was issued to Chief Executives of Education and Training Boards (which are statutory bodies), it is not applicable to the respondent as they are a community and voluntary organisation. The circular was never issued to the respondent by the department.

The Remuneration statement in The Complainant’s contract does not expressly link The Complainant’s salary to the CDYSB Scale.

No employee has a contract stating that they are on the CDYSB Scale, simply the same phrase indicating from where the salary detail is derived.  The Respondent categorically states that no employee in their employ is or has ever been paid on the senior youth worker salary scale. No such role exists in the organisation.

The respondent’s salary scale is an amalgamation of all of the scales in operation at the time of the exercise in 2022 i.e. the 2011, 2018 and 2022 CDYSB salary scales on which staff salaries were based, depending on when they commenced. The decision to bring the relevant scales together into one was made by the Board and it was intended to tidy up and bring clarity to a situation where there were multiple scales in use.

The 2010/2011 scale, which was the reference point for The Complainant’s starting salary in her Contract, reaches the top of the scale at €40,138. The commitment of the company to improving The Complainant’s salary is reflected in the fact that her current salary is €46,203. All the improvements to her salary over time have been based on the CDYSB Salary Scale referred to in her Contract.

The Respondent confirms that the Section 39 Pay Restoration, including applicable back pay, was fully applied to The Complainant’s salary in a timely manner in 2024 and within the rules of the scheme. Full information was provided to her as to the workings and how the figures were calculated. This time period coincides with the cognisable period for Payment of Wages under this complaint. At a time when The Complainant asserts she was entitled to wages that were unpaid, the full remedy of the Section 39 process was being applied to her.

The Respondent has demonstrated that the salary scale referred to in The Complainant’s Contract, the City of Dublin Youth Services Board Youth Worker Scale, has been the basis of all of her pay, past and present.

There was no deviation from the CDYSB Youth Worker scales when an administrative exercise was undertaken to amalgamate the scales into one coherent company pay scale in 2022.

The Respondent has categorically stated truthfully that no employee in the company has ever been paid on the Senior Youth Worker Salary Scale.

The Respondent has shown that The Complainant’s pay has increased from €31,070 in 2013 to €46,203 in 2024. It is deeply regrettable to the Respondent that The Complainant is of the belief that she has a shortfall in wages. The company has at all times paid The Complainant in line with the resources available to them from funders and has succeeded in improving her salary despite years of chronic underfunding. 

The Respondent does not have the financial resources from the SERDATF to pay The Complainant any more than her current salary. 

It is respectfully submitted that should The Complainant’s succeed, with a direction to pay retrospection on an elevated salary scale or to pay her in line with a statutory pay scale, this will have grave consequences for the future delivery of much needed services to vulnerable people.

Findings and Conclusions:

Section 6 of the Act provides:

In addressing the question as to whether none or less than the total amount of wages that were properly payable to the Complainant were withheld in the cognisable period, I have considered a number of elements.

The Complainant’s contract of employment in 2013 stated that “the gross salary payable is €31,070 as specified on the CDYSB Salary Scale (Point 2) Pay awards and increments are subject to finance being available from the SERDTF to fund the project”.

I note the Respondent’s point that “no employee in their employ is or has ever been paid on the senior youth worker salary scale. No such role exists in the organisation”.

The Complainant seeks effectively to be either regraded to a Senior Youth Worker grade or to be placed on the CDYSB scale.   It is understandable that, from the wording in her contract, the Complainant would have expectations to advance on the CDYSB scale.  However, the Respondent has indicated clearly that the scale was a guideline and I note they moved to streamline scales in 2022.   At the time of the cognisable period, the Complainant is on point 13 of the scale.

The Payment of Wages Act 1991 is designed to rectify wages unlawfully deducted or restore wages properly payable.  In this instant case, I have not been provided with evidence that wages properly payable were withheld from the Complainant.  I find the complaint to be not well founded.    

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions in that Act.

Based on the reasons above, I have decided the complaint is not well founded.

Dated:   13/12/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: