ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052169

Parties:

Complaint:

Date of Adjudication Hearing:  11/11/2024

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:

Summary of Complainant’s Case:

The Complainant was recruited as a Clerical Officer (CO) in the Civil Service 22 years ago in February 2002.

The complainant was offered and accepted a higher duty allowance (HDA), from CO to Executive Officer (EO) from 4th August 2020 until 29th December 2023 when the Department ceased the allowance. The complainant had previous experience of acting up to EO level.

The complainant sought clarification in writing as to what work he would no longer be doing since he was no longer receiving the allowance but did not receive a written response.

The complainant is carrying out the same work in Control area on CO pay as he was doing when in receipt of EO pay. Previous to the end of his HDA the complainant was working mainly with Commencement of Employment (COE) forms. He is still working on COE forms making retrospective decisions reducing payment entitlements and in many cases disallowances of entitlement.

While the role profile of responsibilities of the Clerical Officers and Executive Officer in the Control area differ on paper in reality there is little or no difference between what both grades are carrying out.

The role profile for Control area indicates that EOs manage the performance of staff reporting to them including managing staff performance, attendance, sick leave etc. In reality the complainant did not have this managerial responsibility in the Control area nor do the other EOs working in that area.

The complainant consented to payment of the Higher Duty Allowance when he took on work as an acting EO in the Intreo Centre and subsequently took on EO work in the Control team. The complainant did not consent to the reduction in pay when his employer ceased his HDA on 29th December 2023.

The complainant was offered a further higher duty allowance in September 2024. When the complainant asked what duties he would be carrying out he was advised that all Deciding Officers (DOs) in the area he would be acting in revise decisions and complete means assessments on JA, JB and OFP claims. A Deciding Officer is a term that is applied to both the CO and EO grades.

The complainant has a significant level of experience carrying out the EO role. Despite same this experience has not been adequately recognised when the complainant has gone for promotion on a number of occasions. He was No 1 or 2 on the 2021 panel when it closed. In the most recent internal EO competition the complainant was unsuccessful in the 2nd round interview where it was assessed he didn’t show enough evidence to his commitment to public service values despite his vast experience as a CO and an acting EO.

From 2nd January 2024 the complainant continued to carry out the same duties with a reduction in gross of €141.38 per week (estimated at €70 less net pay per week). We would argue that the HDA should have continued and as it was ceased the complainant is being paid less by his employer than the amount due to him.

The complainant was 3 years and 4.5 months on continuous HDAs in two separate sections.

It is unclear why the employer ceased the higher duty allowance in late December 2023. Work in the Control Team area has been traditionally at EO level.

The estimated net loss at the time the claim was made was €1,680. We would contend that the Department continues to pay the complainant less than the amount due to him as the HDA should have remained in place.

Conclusion  

The complainant continues to carry out the work he consented to carry out in return for a higher duty allowance. There has been no cessation in the work for which he was in receipt of a HDA. The complainant sought clarification as to what tasks he should no longer be doing in Control when the Department stop paying him the allowance and did not receive a written clarification of same.

The CO and EO grades in Control carry out similar work. The EO grade in Control is not supervising the COs in the area. There was given no basis on which the higher duty allowance was ceased and we believe there was no basis for same. The wages paid each week since the end of December 2023 is less than the amount The complainant is due. The net figure now stands at €3,150 and the gross figure at approximately €6,360 .

Summary of Respondent’s Case:

The claimant is, and has been since 18th February 2002, a Clerical Officer (CO). 

He received a Higher Duty Allowance (HDA) offer and signature accepting same was submitted.

The claimant claims that he worked as a Higher Executive Officer (HEO) for the Department of Social Protection (DSP) but was paid a lower rate. He claims a differential of €70pw*24 weeks = €1,680. It is not clear whether he is claiming in respect of a period before or after 2/1/24.

The claimant has never acted up to HEO. He has only acted as an Executive Officer (EO) for certain periods. Most recently, he acted as EO in the period 4/8/20 to 29/12/23 (broken into 2 periods therein), during which period he was paid a Higher Duty Allowance (HDA).  This was in line with the circular governing HDA.

HDAs are offered based on local management discretion and are subject to seniority and suitability. The communications to the complainant regarding termination date of the HDA was submitted.

In the period before 4/8/20, the claimant worked as a CO and performed the following main duties:-

1. Claim maintenance and decisions including new casual means, school workers etc.
2. Grade appropriate debt work.

iii. All front office duties including hatch, warnings, queries, calls, correspondence, customers.

1. Prepare exceptional payments for entry on ISTS platform by EO.

The Acting EO periods

During the period 4/8/20 to 6/10/23, the claimant worked as Acting EO in INTREO Front Office (main responsibility Casuals Section). The duties included his normal CO duties check plus the following additional EO type tasks:-

1. Complete complex means assessments without referral to an EO
2. Approve and enter exceptional payments (between €2,500-€4,000) on the ISTS platform.

• Manage CO staff The HDA was implemented because the claimant temporarily replaced persons who were acting up to higher roles, also on a HDA. There was more work to do during the Covid 19 Pandemic with PUP payments etc.

During the period 9/10/23 to 29/12/23, the claimant worked as Acting EO in the Control Team.

The main task of the Control Team is to deal with means assessments and overpayments. The claimant’s EO duties included the following tasks:-

1. Complete complex means assessments
2. Approve and enter exceptional payments (between €2,500 - €4,000) on the ISTS platform.

After 2/1/24 the claimant reverted to CO duties in the Control Team. On or about 23/12/23, his manager Ms S, Higher Executive Officer, spoke to him about grade appropriate work expected of him and the mechanisms available for him to escalate work appropriate to EO grade or HEO as appropriate. The duties that he must or can escalate include:-

1. Some complex means assessments
2. Some debt tasks to enter onto the Debt Recording Accounting System (DRAS)

• Prepare exceptional payments (between €2,500-€4,000) for approval and input by EO on the ISTS platform.

His 2024 PMDS goals were changed from the previous years to reflect this.

CO’s have different approval limits compared with the EO or HEO for interscheme adjustments and write off of debt.

The claimant is currently a CO within Control Team. The claimant is in 1 of 6 Control Teams. Within his team there are 28 workers including 6 COs, 22 EOs and 1 HEO.

Payment of Wages Act (PWA) claim

The DSP did not make an unlawful deduction as defined by s. 5 of the PWA. S.5.6 PWA provides that it can constitute a deduction if 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”. [our emphasis added]

The claimant was paid the rate the DSP contracted to pay him at material times and therefore the wages that were properly payable pursuant to s.5.6 PWA. The Claimant had no contractual right to a higher rate of pay. Any HDA must be applied for to HR, and approved HR. There is no contractual right to the HDA. The DSP made clear to the claimant what periods the HDA would be paid and when it terminated.

Even if the claimant argues that he did like work compared to another EO in the period after 2/1/24, he cannot succeed in a PWA claim. There is no provision in the PWA which allows the claimant to claim equal pay compared to another worker, unlike for instance the EEA.

Cox Employment Law in Ireland 2009 at p. 435 refers to Clinton v St Anne’s National School PW 70/2007. The Claimant therein claimed that the rate of pay was less than the national per diem rate but had accepted the rate on appointment. It was held that the employer had not breached its obligations in the PWA and it had paid what it contracted to pay.

Findings and Conclusions:

CA-00064021-001

In this case, the Complainant objects to the fact that the Respondent stopped payment of a Higher Duty Allowance (HDA) at the end of December 2023.  The Complainant signed a contractual acceptance of the position of the HDA in July 2020 on the basis that he would have no claim to its continuity in the event of the cessation of that work.   The continuation of the HDA was a contractual matter which ceased when the Complainant was reverted to his role and grade as Clerical Officer and the circumstances were clearly explained to him by his Manager on 23rd December 2023.  There has been some disagreement on the part of the Complainant in relation to what constitutes Executive Officer and Clerical Officer duties.  However, in this case, I am bound by the law in what constitutes unlawful deductions from employees’ wages.

The applicable law

Section 5 of the Act provides:

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 under that Act.

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

Dated:   10th January 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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