ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046054

Parties:

Complaint:

Date of Adjudication Hearing:  15/01/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

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

Background:

The complaint is that the Respondent acted in breach of the Act by failing to pay the Complainant the correct and appropriate point of the scale she was on.

Summary of Complainant’s Case:

The Complainant commenced her role as Guide Dog Mobility Instructor (GDMI) on 19 December 2018 and was provided with a contract of employment.  The contract specified a starting salary of €29,850.  However the contract is silent on the pay scale associated with the role.  On completion of her first year in the employment, she enquired about her pay scale expecting the incremental increase to be higher than the received €31,076.  She discovered that Apprentices on their second year were on €32,000.  She raised a grievance in January 2023 but this was not resolved through internal procedures.

As a GDMI, the Complainant completed a Level 5 orientation and mobility; theory and practice course, simultaneously completing the apprenticeship, this achievement making her the most qualified GDMI.

The Complainant was not given the salary pay scale with her contract of employment.  It was only in 2019 she realised she was on the wrong point of the scale.  She has been through many challenges raising her complaint, including the refusal of the employer to deal with the trade union.

The Complainant did not receive the pay scale until January 2019 when it was advised by email.  Believing her position should align with historical practices she expected to be at point 2 in her second year.  Contrary to her expectation, she was placed on a salary of €31,076 instead of the anticipated €32,00 at point 2.  It is argued that this discrepancy resulted in a deduction without her agreement.  When the WRC complaint was referred, her salary was €33,442, when her rightful salary should have been €36,137.  The outstanding amount, reflecting the 6-month period 30 November 2022 to 31 May 2023 is €1,347.50, representing the increment difference during that period.   Another WRC complaint has been referred representing the Complainant’s loss from July 2023 to January 2024. 

Case law was submitted to encompass the definition of wages as including increments (PWD1619 Considine v Limerick City & County Council).  The refusal to pay an increment was decided in favour of the claimant in r-080041-pw-09/GC May v Aer Lingus.   In [2016] 27 E.L.R. Hogan v HSE the Court found that non-payment of certain aspects of salary constituted an unlawful deduction of wages under the Payment of Wages Act.

Conclusion

The essence of this case revolves around the non-payment of the Complainant’s wages, constituting a deduction.  The Complainant is seeking rightful compensation for the discrepancies in her salary which have been ongoing since her second year in employment.  It is argued that the non-payment of her incremental point amounts to a breach of the legislation.  Relevant case law, particularly Considine v Limerick City & County Council and May v Aer Lingus establishes that increments are part of wages, and that refusal to pay constitutes an unlawful deduction from wages.

Summary of Respondent’s Case:

The Complainant is currently employed as a Guide/Assistance Dog Mobility Instructor (“GDMI”) and as such is responsible for completing the final part of a dog’s training.

The Respondent currently employs circa seven GDMIs, some of whom trained up within the organisation pursuant to a formal apprenticeship contract and others of whom were directly engaged as qualified/experienced GDMIs. In addition to those qualified GDMI’s, at present there are also two GDMI Apprentices.

The Complainant was initially engaged as an Apprentice commencing on the 14 January 2019 pursuant to an Apprenticeship Contract. This Apprenticeship Contract expressly provides for a gross salary of €29,850 pro rata per annum, which was the rate of pay applied. That contractual provision is at the bottom of the second page of the Apprenticeship Contract and it is the case that there is no express reference or cross reference to any corresponding pay grade or point of scale within Apprenticeship Contract.

Nevertheless, there was an underlying basis for the calculation of appropriate contractual pay by the Respondent, with different pay scales calculated for Apprentices and Qualified GDMIs. That position is evidenced within an email document dated the 21 January 2019, which was furnished by the Respondent’s then HR Manager to the Complainant and others, in an effort to respond to a salary scale query raised at the time.  That email points to a series of scheduled future salary increases, the first of which was due to rise to €31,076 in January 2020 (which cross references Point 5 of the GDMI Apprenticeship Scale). There is then a reference to an incremental increase due in January 2021 bringing the salary to €32,000 (which cross references Point 6 of the GDMI Apprenticeship Scale). Thereafter, it can be seen that each year’s January increment relates to the GDMI Scale and no longer the GDMI Apprenticeship Scale, owing to their expected qualification.

Furthermore, within the body of that email the Respondent has indicated in clear terms that the salary scale information “related to your apprenticeship (and further GDMI once you qualify in three years”.

It is the case that the Complainant qualified in May 2022 and she was duly issued a letter from the CEO congratulating her and confirming the position regarding her salary upon qualification, which states:- “Upon qualification on the 20 May 2022, you will move to point 2 on the GDMI pay scale of €33,422 pro rata per annum. You will move to the next point of the GDMI scale on the anniversary of that date each year, the 20 May. As previously communicated, as a gesture of goodwill and on an exceptional basis, you will receive your salary increase backdated to March 2022 in the May 2022 payroll.”

It is noted that the Complainant never in fact raised any issue regarding her rate of pay upon same being communicated to her, either at the commencement of her Apprenticeship, upon the issuing of the email in January 2019 which outlined the adoption of scheduled increments, or the issuing of her qualification salary terms in May 2022 (as above).

The Respondent is not permitted and not going to discuss details of the salaries paid to other Complainants, which are confidential to those Complainants to whom rights to confidentiality and privacy are owed. However, it is the case that the Complainant has sought to claim that two separate staff members were, at a corresponding point in their careers as GDMIs, engaged at a higher level on the graded pay scales than the Complainant. To be clear, this is a misconceived argument. Firstly, those persons had qualifications and experience already, having achieved Guide Dog Training qualification, which impacted on their salary as it was then calculated. Secondly, the Respondent wishes to stress that the two persons, to whom the Complainant has sought to rely upon as comparators, were engaged some seven years prior to the Complainant and that the arrangements and pay-scales were not the same at that point in time. Thus, they are clearly not valid salary comparators. The Complainant is in essence seeking to have her contractually applicable rate of pay set aside, and substituted with a point on a long amended pay scale, which was in any event applied to an invalid comparator, and where that defunct pay scale has in fact not existed during her time as a GDMI Apprentice or GDMI.

Finally, it is the case that the Complainant has at all times been paid her contractual salary and paid in line with the wages that were outlined to her.

Since May 2023, the Complainant’s current gross pay is €3,219.75 month, for 35 hours per week, which is an annual salary of €38,637.00. That is the figure she has been paid and no deduction or reduction to her wages has been applied.

Preliminary Objections – scope of the complaint

It is submitted, by way of preliminary objection, that the complaints raised by the Complainant do not engage the provisions of the Payment of Wages Act 1991 and, in particular, section 6 of the Act. Accordingly, the complaint raised is not properly before the WRC as there is no statutory jurisdiction to adjudicate on the issues raised.

Section 6 of the Payment of Wages Act 1991 provides jurisdiction to the WRC to determine matters:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an Complainant or the receipt from an Complainant by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the Complainant compensation of such amount (if any) as he considers reasonable in the circumstances...”

This provision is engaged only where a complaint is made in respect of “a contravention of section 5 as respects a deduction from the wages of a Complainant or the receipt from an Complainant by an employer of a payment”.

Section 5(1) provides that: “An employer shall not make a deduction from the wages of a Complainant (or receive any payment from an Complainant) …”

Therefore, in order to found a claim under section 6 of the Act, an Complainant must show either: (1) that the employer has made a deduction from the wages of an Complainant, or (2) that the employer has received a payment from an Complainant.

The Respondent has not received a payment from the Complainant and no such grounds are advanced by her. Thus, the sole contravention of section 5 contended for by the Complainant arises by way of “deduction”.

Case law was presented in support of the Respondent’s position.

Deduction within the meaning of the Act

In Dunnes Stores (Cornelscourt) Ltd v Lacey [2007] 1 IR 478, Finnegan held that a deduction takes place where monies which are “properly payable” under the agreement between the parties has not been paid. Thus, the monies claimed must be due and owing.

It is the case that the WRC and the Labour Court have repeatedly addressed the fact that such pay-scale claims do not come within the jurisdiction of the Payment of Wages Act. 1991.

It has been established that in interpreting the Payment of Wages Act, it first must be established which wages which were properly payable to the Complainant, before then considering whether a deduction within the meaning of the Act had been made. (Marek Balans v Tesco Ireland Limited[2020] IEHC 55) referred to by an Adjudication Officer in Elizabeth Keywood v An Garda Siochana - ADJ-00044776.

In Administrator v Financial Advice Service - ADJ-00027250 - 26th August 2020 the AO noted that while the Complainant had an aspiration to be paid a higher rate of pay, she received a contract of employment, which she states she reluctantly accepted, and she was paid according to that contract. The AO concluded that no illegal deduction was made from the Complainant’s rate of pay and that no breach of Section 5 of the Payment of Wages Act had occurred and that the complaint was misconceived.

In University College Cork Tyndall National Institute and Mr Finbarr Waldron - PWD212, the Labour Court noted:

“It is not for this Court under the Act to determine what is reasonable or unreasonable in a circumstance such as that outlined by the parties. The Act does not make provision for the determination of what wages are properly payable on an occasion on the basis of what the Court might think reasonable. Rather, the Act requires the Court, having investigated the matter, to make a determination as regards what wages were properly payable on a given date by reference to objective criteria…”

In the instant case, no deduction of wages can be said to have taken place. No sum fell due for payment on first January 2023, as alleged in the complaint form, and no payment is due and owing under the Complainant’s Contract. It therefore necessarily follows that the matters complained of in these proceedings cannot give rise to a contravention of section 5 of the Act. Thus, by operation of section 6 of the Act the Workplace Relations Commission does not have jurisdiction to consider the issue complained of. The claims must therefore be dismissed.

Conclusion

There are no outstanding payments to which Complainant is entitled. The sums payable under her Contract of Employment have been validly paid.

Accordingly, no payments are properly payable to the Complainant to which she is entitled. The Workplace Relations Commission should therefore dismiss the complaints before it.

Findings and Conclusions:

This complaint was received on 31 May 2023.  The cognisable period is from 30 November 2022 to 31 May 2023. 

The applicable sections of the Act are as follows:

I note that at the start of her employment, the Complainant was given and accepted an Apprenticeship Contract which provided for a gross salary of €29,850 pro rata per annum.  The pay scale provided by the Respondent on 21 January 2019 states that the next point due in January 2020 was €31,076.  The Complainant expected €32,000.  The nub of the problem appears to be that two other employees, with longer service and previous qualifications were on this point of the scale in what appears to have been a historic situation.  In this instant case, I note the scale clearly outlines that in January 2020, one year after the Complainant commenced employment, the point of the scale for her was €31,076.   As the case law has found, it is not for me to decide what is reasonable or not in relation to the claim, rather what wages were properly payable.  Given the contractual situation, and the pay scale provided, I find that there has been no deduction made from the Complainant’s wages as wages properly payable were paid to her in the period.      

Decision:

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

For the reasons cited, I have decided that the complaint is not well founded.

Dated:   28th February 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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