ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046340

Parties:

Complaint:

Date of Adjudication Hearing:  31/07/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and 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 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 Complainant submits that he was wrongly treated in relation to the Additional Hours (AH) scheme.  He claims that wages for 4 quarters in 2022 and 1 quarter in 2023 were wrongly deducted.

Summary of Complainant’s Case:

The Complainant is a Prison Officer since January 1999.  He gave evidence on affirmation summarised as follows:

He was on Additional Hours (AH) Band 3 (360 hours per annum, 90 per quarter) until quarter 1 in 2022 when he was removed due to having had 3 or more absences.  He stated that he was wrongly removed, having had no warning.  He emailed Governor K on a number of dates between January 2022 and March 2022 with no replies.  He disputed the Respondent’s arguments that he had to apply to be put back on AH.  He referred a number of times to his lack of knowledge about the process.  He contended that the IPS was in breach of the Proposal for Organisational Change (“PFOC”) and that he should have automatically been put back on AH after 3 months. 

He contended that he was not aware of any addendum to the PFOC and as far as he was aware, he should have been restored to the AH system after 3 months.  He did not agree that the PFOC was amended or if it was he was not made aware of it.  He did not apply to other Governors or the HR Governor to explain his circumstances of the absences.  He said it was not true that he could speak to other Governors.  He had another issue recently and he was told you cannot contact other Governors other than your direct Governor.     He reiterated that he received no replies to his emails to Governor K.  In cross examination, his attention was brought to the email of Governor B dealing with the issue of mitigation distinctly: “If for some extenuating reason you are unable to attend for your AH contact must be made with the detail office before 10 am. You will then have 24 hours of return to duty to inform the HR Governor (in the absence of the HR Governor I will deal with it) of your reasoning for obtaining said AH back.”

In cross examination, he agreed that he did reapply to be put back on AH in November 2022.

Summary of Respondent’s Case:

The Complainant has submitted a claim seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991. In summary, the Complainant alleges that the Respondent has failed to pay the Complainant Additional Hours, which in effect is a system of controlled overtime within the Respondent organisation.

The Respondent strongly opposes this claim. Furthermore, notwithstanding the complete opposition to this complaint, the Respondent will state that specific periods of this complaint are time barred due to the nature of the specific periods in which Additional Hours are budgeted and allocated; described further within this submission.

The Complainant is a prison officer employed with the Respondent since 18 January 1999.          Section 4 of the employment contract refers to “Hours of attendance” confirms the following: “Officers will be required to work on public-holidays and to work overtime as and when the need arises.” The section is clear regarding the hours of attendance and the Respondent submits that no guaranteed hours or Additional Hours (overtime) are referenced as none are guaranteed.

Prison Grade staff are subject to the processes and procedures established in negotiation and agreement with the Prison Officers Association or otherwise set by management or legislation in order to ensure the operational capacity, safety and security of the prison system. The processes relating to Additional Hours (“AH”), are set out in the Proposal for Organisational Change (“PFOC”) agreement. It is submitted that the Complainant is fully aware of the PFOC rules and the application of the control mechanisms, specifically deductions in hours following unauthorised absences. Unauthorised absences relating to AH is a particular concern for the Respondent due to the need to maintain operational capability and security at all times.

2 March 2021, due to ongoing issues with compliance, HR Governor M issued an email to all staff in Portlaoise Prison re Q3 AH hours. The email reemphasised the IPS approach, per the PFOC agreements, regarding non-compliance. Importantly, with respect to AH, it states: “Any officer who is moved to a lower band must apply through the agreed process for a change in Band in the future”. This established process is well known and is further set out on the application form for AH.

15 June 2021, Governor B, looking to address AH attendance non-compliance in Portlaoise Prison, circulated an email setting out an approach to support the PFOC process and encourage adherence to the existing rules re AH attendance. The Respondent submits that the application of the rules regarding absences is clearly reiterated: “Three absences will incur a removal from their existing band to a band that will allow for placement. This includes reserves and compels. Currently this band for Portlaoise prison stands at 0 hours.” Furthermore it is clear that the process applies to absences not forms.

The Complainant subsequently failed to attend for allocated AH hours on: 10 July 2021, 20 July 2021, 27 November 2021, 2 December 2021, 15 December 2021 and 16 December 2021.

The Respondent rejects the submission of the Complainant that he was prevented from explaining any mitigating circumstances. The Complainant could have done so at the material time of each individual absence, in accordance with the PFOC process. The amended PFOC agreement of 20 September 2018 sets out:

“Officers making applications under section 2.6.2 (mitigating circumstances) must do so on the first day of attendance for duty following the absence on AH duty. Applications outside this timeframe will not be considered.” The email of Governor B additionally deals with the issue of mitigation distinctly: “If for some extenuating reason you are unable to attend for your AH contact must be made with the detail office before 10 am. You will then have 24 hours of return to duty to inform the HR Governor (in the absence of the HR Governor I will deal with it) of your reasoning for obtaining said AH back.”

The Respondent does not dispute that forms one and two were not completed following the first and second absences respectively. The Respondent submits that while it was preferable to have an attendance with an individual with respect to an absence, this is not always feasible or possible. The Respondent rejects any proposition that the failure to provide such forms led to the Respondent being unaware that he failed to attend for duty or that he was prevented from mitigating his situation. The Respondent submits that the Complainant was not prejudiced in receiving form three only as the rules regarding three absences were clear, the unauthorised absence forms do not form part of the PFOC process and at the time the PFOC control mechanism was invoked, the measure was applied per the process and the Complainant was fully informed.

28 December 2021, the Complainant had a meeting with HR Governor K with respect to a number of matters including the failure to attend for AH duty on six individual occasions. This document was completed and signed by both the HR Governor and the Complainant. This document specifies the days of non-attendance and that in light of same, the Complainant was “now liable to the sanctions outlined below”. Together with the PFOC process and the supporting emails of 2 March 2021 and 15 June 2021, respectively, the Respondent submits that the Complainant was on notice at all times that:

1. Three unauthorised absences could lead to a reduction in AH band
2. That if invoked, the process requires that the individual reapply to a new band.

29 December 2021, the HR Governor issued the documentation to the AH team with a request to reduce /remove the Complainant from the scheme where appropriate. Unless a specific request is submitted by the HR Governor, following a review of the budget, operating need and live applications for band changes by other Officers, a deduction is applied to an officers existing allocated AH Band to an available AH band which can be the 0 hours per annum band. This is in accordance with the established process as set on 21 March 2016.

On the same date, the HR Governor issued an email to the Complainant confirming that IPS AH will be notified of the absences and that the Complainant may be removed / reduced a band from AH Scheme. It is of further note, that the HR Governor also states that a further absence had been missed from the form. The Respondent submits that at all material times the Complainant was on notice of the issues, the consequences and that the PFOC document was being followed with respect to the deduction in hours. Furthermore, it is rejected that there is an onus on the Respondent to inform the Complainant when he has failed to attend for his AH duty.

3 January 2022, the IPS AH team issued the AH budget to Portlaoise Prison. On the same date, the HR Governor forwarded an email notification to the Complainant setting out:

“As discussed on 28th December, you have had six unauthorised AH Absences within the past 6 months. IPS AH have confirmed you will be removed from the scheme from the start of Quarter 1, 2022.”

This email, in addition to the meeting of 28th December 2021, confirms that the Complainant was notified in advance and was fully aware that due to his unauthorised absences he was to be deducted AH hours in accordance with the PFOC agreement.

10 January 2022, the Complainant seeks confirmation from the HR Governor of the dates related to his AH absences. On the same date, the HR Governor responds with a further copy of the completed absence form.

11 January 2022, the Complainant emails the HR Governor enclosing what is described as half sheet containing an appeal of the decision to apply the control mechanism of 2.6 of the PFOC. The Respondent submits that there is no appeal mechanism other than to appeal each individual absence, at the relevant time, with respect to mitigation. In this case, the Complainant failed to provide any mitigation with respect to his individual absences in accordance with the processes to which he was aware.

Notwithstanding the Fact that the Respondent submits that the final decision to apply the Control Mechanisms is not subject to appeal where the individual absences can be mitigated, the Respondent acknowledges that the Complainant chased a response to his correspondence of 11 January 2022 on 17 February 2022, 11 March 2022, 16 March 2022 and 21 March 2022. The Respondent accepts that this was regrettable but that the Complainant was not prejudiced by this failure as no appeal mechanism was available. Furthermore, the Respondent submits that the potential for communication breakdowns to occur is accepted and as a result a number of options are available both informally and formally to resolve same; these include:

1. Speak to the HR Governor directly, in Portlaoise like in all of our prisons the HR Governor is on site as a point of contact and any officer should feel free to liaise with their HR Governor and can even be supported by the Prison Officers Association or a colleague as necessary.
2. Speak to or email another Governor or Assistant Governor regarding the issue and the lack of response to the emails.
3. Speak to the local branch representative of the Prison Officers Association seeking to have the matter considered more formally via the association direct to the HR Governor of via the Local Management and review Committee.
4. Speak to the local branch representative of the Prison Officers Association seeking to have the matter considered more formally via the association direct to the HR Governor of via the National Monitoring and review Committee.
5. Use internal mechanisms and policies, such as the Grievance policy set out in TAB F to have any perceived wrongdoing assessed.
6. Furthermore, the issue could have been referred directly to Human Resources in HQ, the Detail office or AH IPS who could have clarified the position.
7. In addition, all officers can access the EAP support for issues that are arising who will regularly act as an advocate in highlighting matters to be progressed.

As a result, the Respondent does not accept that the failure of the HR Governor to respond to the email requests; seeking an appeal that was not available, had any material impact in the Complainant escalating the issue or applying for a different AH band in the subsequent quarter(s). The Respondent submits that at all times the Complainant was aware of both the length of the deduction and the need to reapply to re-join the scheme.

26 April 2022, due to changes in personnel the IPS AH team issued a reminder email to all HR Governors and senior management with respect to the existing AH rules regarding absenteeism specific to AH allocation. That approach was applicable to all prison staff and reiterates the position that the third absence triggers an “automatic application of the PFOC section 2.6”. This is not a change of process, it is a confirmation of the process that existed already and highlights, as per section 17 that there is no appeal once an officer has failed to mitigate their circumstances per the PFOC.

27 April 2022, the Complainant wrote to the HR Governor setting out a challenge to the application of the PFOC and the decision making process via a second half sheet. This communication is chased by the Complainant on 28 August 2022. The Respondent submits that the same mechanisms for resolution exist as set out above. It is also unclear whether any informal verbal communication was undertaken at this time.

4 November 2022, the Complainant wrote to the HR Governor with a complaint regarding the application of 2.6.3. This correspondence was replied to by the HR Governor on 5 November 2022. With respect to this exchange, the Respondent submits that the Complainant is well aware of the PFOC, the control mechanisms, the standard timescale for deduction and the need to reapply to return to a higher band.

26 November 2022, the AH budget for Q1 2023 was set and issued. For the AH budget process to operate effectively, the budget is completed in advance to enable employees, prison management administration staff and internal processes to be prepared and updated prior to the beginning of the relevant quarter. The AH application form specifically states:

“All Applications must be received by Human Resources Directorate in the first 8 weeks of each Quarter (5 weeks prior to the end date of each Quarter) for consideration in the following AH quarter. Applications received after this deadline will be considered for the following quarter.”

29 November 2022, the Complainant lodged his application for AH requesting allocation to band 2, which is an application for 240 hours. The Respondent highlights that this application was in accordance with the established process. The Respondent additionally submits that this is different to the 360 hours claimed by the complainant per the Complaint form.

29 November 2022, an email was issued to the Respondent confirming that application was recorded and that the Complainant “would be included in all future AH Budgets…”. The notification also indicated that the Complainant was not yet eligible for his preferred AH Band. That is in accordance with established practice as set out in the submission.

26 February 2023, the budget for AH allocation for quarter 2, 2023 was circulated and the Complainant is included. As per the document, it is noted that the Complainant, similar to other employees, was unsuccessful in their first choice and so was allocated to the Band below their first choice. This document distinctly shows the application of the PFOC agreement in practice with the same rules being applied to all staff. The Complainant remains on the list awaiting an increase to his preferred choice.

ADDITIONAL HOURS

A number of relevant points are summarised as follows:

Where there is a disagreement between the parties to the PFOC, the matter is referred to the group’s independent chairperson at the WRC. In line with the PFOC agreement, agreed AH hour budgets are shared with the local management for implementation within the agreed parameters of the PFOC.

The PFOC document has been continually modified and upgraded through time, for example, with respect to AH updated on 21 March 2016, and 20 September 2018.  The decision of the Chairman of the WRC “that any officer subject to sanction under 2.6.21 of the PFOC must reapply to another band” was submitted.     

The Respondent submits that the Complainant does not have an automatic right to AH and no AH is payable where AH has not been worked. The Complainant did not seek to return to the AH scheme despite no barrier preventing him from doing so and numerous communications advising that this was the process.

It is important to state that the Complainant has not asserted and the Respondent submits that at no point was the Complainant prevented from submitting an application for AH.

THE LAW

Relevant extracts from the Payment of Wages Act 1991 were cited, with particular relevance to “wages properly payable”:

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 therefrom 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 in so far 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 the occasion.”

It is submitted that the word payable is critical to this matter as neither the employment contract nor the PFOC agreement set out any entitlement or expectation of AH. No AH were worked by the Complainant during the period claimed and subsequently no AH sums were payable. Throughout the entire period, the Complainant was able to work contractual hours in accordance with his employment contract. The Respondent submits in circumstances where hours are not contractual per the terms of the employment contract, nor guaranteed per the terms of PFOC and established working practices, that no wages are payable in circumstances where no AH are worked.

The Workplace Relations Act 2015 at section 41 (6) states the following:

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.

……… 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.

The complaint form was lodged with the WRC on 31 May 2023. At that time, the Complainant was working AH at Band 1, being 112 hours per annum. As notified on 29 November 2022, the Complainant had been informed that he would remain on Band 1 only until he is eligible to move to Band 2; 240 hours per his application.

The Respondent accepts that the Complainant was allocated to Band 0, 0 hours per annum, from January 2022 to March 2023. The Respondent submits that each Quarter within this period is distinct. The Respondent submits this position is emphasised as formal and common practice and understanding from the Complainants Application form in the description of quarters as well as the PFOC rules and the application of same as described in this submission.

The Complainant had a meeting with his HR Governor on 28 December 2021 and signed the unauthorised absence form. The Complainant was decreased to zero hours, as of 1 January 2022 in accordance with established processes. Without prejudice to the fact the Respondent rejects that the deduction in AH hours was applied incorrectly or unfairly, the Complainant has failed to lodge his complaint to the WRC within the relevant period with respect to date in which the decrease in AH hours was applied.

Furthermore, while the Respondent submits that the Complainant has been aware of the PFOC agreement, process and procedures for many years, it is of specific note that within his complaint form has indicated that he was on notice of the PFOC literature as at 27 April 2022.    2.6.1 of the PFOC document subsections 4 and 6 specifies that “officers may apply to the Governor at any time to be restored to the AH scheme at the band from which he or she was originally removed or excluded.” Without prejudice to the fact that the Respondent rejects the interpretation of the Complainant with respect to his interpretation of section 2.6.1 of the PFOC document and process, the Complainant has failed to lodge his complaint to the WRC within the relevant period following his own assessment of the rules as at the date of his perceived knowledge; 27 April 2022.

In addition, despite the fact that the Complainant could have applied for AH at any point in time following his decrease, he did not do so until 29 November 2022. The Complainant did at that time duly complete the AH application form and, at the next available opportunity, was allocated AH.

Witness Governor B gave evidence on affirmation.  She was a Governor in Portlaoise prison within the Complaint period up to December 2022. She provided evidence as to the circumstances and rationale surrounding her email of 15 June 2021 and how AH absences were managed locally in Portlaoise prison. She also addressed the communication channels and internal dispute resolution mechanisms that exist within the Prison Service for example with respect to the local Prison Officer Association representatives and the ability to escalate grievances and how AH attendance was managed in the prison at the relevant time.  She confirmed that any Prison Officer who could not attend their AH shift must inform Detail or a Governor.  She said that any Governor could be contacted and that if there was a reasonable explanation, there would be no problem. She also confirmed that if a PO is taken off the scheme he/she can reapply immediately for re-instatement.

Witness Chief Officer P gave evidence on affirmation.  She is responsible for AH compliance.  She gave evidence in relation to the rules regarding returning to the AH scheme.  She confirmed that any PO can apply the next day after removal to be readmitted to AH.

Witness Governor L gave evidence on affirmation. She explained that in managing staff resources including AH attendance, she and the AH team has to work in accordance with the arrangements agreed with the Prison Officer’s representative body. She also addressed the internal dispute resolution mechanisms that exist within the Prison Service for example with respect to the local and national monitoring committees.

Findings and Conclusions:

Time Limits

The complaint was received on 31 May 2023.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“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.

The cognisable time period under this subsection is from 30 November 2022 unless saved by subsection 8 which would extend the time period to 31 May 2022.  That subsection provides:

Section 41 (8)

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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”.

In seeking an extension of time, the Complainant submitted that he tried to have his complaint resolved over time.  He was notified on 28th December 2021 that he was removed from the AH scheme.   He appealed the decision in January 2022.   On 5th November 2022 he was informed that it is up to the individual Officer to reapply to be re-instated to AH.  As he did not submit his complaint to the WRC until 31 May 2023, more than six months later, I do not agree to extend time.

In relation to the substantive case, the relevant section of the Act provides:

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 therefrom 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 in so far 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 the occasion.”

On 29 November 2022, the Complainant applied to be readmitted to the AH scheme.  There was much argument in submissions and oral evidence in the hearing about whether the Complainant    (a) knew he had to mitigate the circumstances of each absence at the time and (b) had to reapply to  the scheme.  The Complainant also put forward arguments about PFOC and he either disputed the terms of that agreement or submitted that any amendments were not known to him. Whatever about the arguments and the disagreements between the parties, the claim by the Complainant for wages outside the period 30 November 22 to 1 April 2023 is statute barred.  The claim for wages in the period 30 November 22 to 1 April 2023 is not well founded as the Complainant was paid in accordance with the AH band he was on at the time.  Therefore I find that wages “properly payable” could not have been deducted from him.  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.

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

Dated:   20-09-2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: