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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Stefanazzi v Labour Court & Anor [2019] IEHC 660 (09 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_660.html Cite as: [2019] IEHC 660 |
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Page 1 ⇓
THE HIGH COURT
[2019] IEHC 660
[2017 No. 34 MCA]
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 46 OF THE WORKPLACE
RELATIONS ACT 2015 AND PURSUANT TO THE PAYMENT OF WAGES ACT 1991
BETWEEN
CHARLES STEFANAZZI
APPELLANT
AND
THE LABOUR COURT
RESPONDENT
AND
DEPARTMENT OF ARTS, HERITAGE, REGIONAL, RURAL AND GAELTACHT AFFAIRS
NOTICE PARTY
JUDGMENT of Mr. Justice MacGrath delivered on the 9th day of October, 2019.
1. This is an appeal on a point of law pursuant to s. 7(4)(b) of the Payment of Wages Act,
1991 (“the Act of 1991”) from the determination of the Labour Court made on the 20th
December, 2016, whereby it refused Mr. Stefanazzi’s appeal from a decision of the
adjudication officer on the issue of the wages properly payable to him in accordance with
s. 5(6) of the Act of 1991.
2. Mr. Stefanazzi is employed by the notice party in the Site Designation and Plans Unit of
the National Parks and Wildlife Service. This unit was historically under the control of the
Department of the Environment, Heritage and Local Government but was transferred to
the Department of Arts, Heritage and the Gaeltacht (“the Department”) from 2011. He is
employed at clerical officer grade but maintains that for some considerable time he has
been fulfilling the duties of a geographic information system technician (“GIS technician”)
at executive officer level, which attracts a higher rate of pay.
3. In its determination, the Labour Court described the central contention of the applicant as
being the failure of the Department to pay wages properly due to him and that this failure
constituted a deduction in accordance with s. 5 of the Act of 1991, ss. (6) of which
provides:-
“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).
(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.”
Page 2 ⇓
The Labour Court’s Determination
4. The appeal was heard by the Labour Court in accordance with the provisions of s. 44 of
the Workplace Relations Act, 2015 on 14th December, 2016. Ms. Caitriona Ryan, the head
of human resources at the notice party’s Department, who has sworn affidavits on behalf
of the notice party, avers that in the course of the hearing an objection was made that
the appellant’s claim had not been filed within the appropriate time limits as set out in s.
6(4) of the Act of 1991 but the Labour Court focused on a different point, namely how
wages become properly payable to a civil servant in the Department (emphasis added)
and subsequently made its ruling on this. It seems that in coming to this decision, the
Labour Court was of the view that a finding on this issue had the potential to be
determinative of the case.
5. The preliminary issue deemed to require determination was whether, at the material time,
a rate of pay was properly payable to the appellant, higher than that which was actually
paid to him. If no such rate of pay was properly payable to him at the material time, then
s. 5(6) of the Act of 1991 could have no application because the pay received by him
would have been in accordance with that which was properly payable to him.
6. The Labour Court expressly records in its determination that the parties accepted its
decision as regards this approach and consequently made submissions concerning the
mechanisms employed to assign a rate of pay, or a grade, to a civil servant in the
Department. The Labour Court also expressly noted that while there was disagreement
with regard to the range of mechanisms available to award acting up allowances or higher
duty allowances, it was common case that a procedure had to be followed by the
Department in order to apply a rate of pay, award a grade, or assign an acting up/higher
duty allowance to a person in the position of the applicant (emphasis added). It is also
expressly stated that it was common case that the application of any greater allowance
following the execution of such procedure required the sanction of the Department of
Public Expenditure and Reform, and that no available procedure had been followed in
relation to the applicant in order to secure for him a higher grade or an acting up/higher
duty allowance. The court also noted the Department’s assertion that no sanction had
been received from the Department of Public Expenditure and Reform for the application
of a higher rate of pay, the award of the higher grade, or the assignment of an allowance
to the appellant.
7. The Labour court found that no procedure had been followed by the Department which
would create a rate of pay properly payable to Mr. Stefanazzi, other than that which he
did receive at the material time. It found that he was not at any time assigned an acting
up/higher duty allowance, awarded a grade other than that of clerical officer in the
Department, or otherwise had a higher rate of pay applied to him. It determined that the
total amount of wages paid to the appellant at the material time was not less than the
amount properly payable to him throughout that period. His appeal could not therefore
succeed.
8. For the sake of completeness, it ought to be recorded that the adjudicating officer in his
ruling described the complaint as being misconceived and hopelessly out of time, stating
Page 3 ⇓
that the appellant was relying on a breach which allegedly occurred in 2009 to advance a
complaint made in 2015. He also stated that the Act was not the appropriate vehicle for
advancing what he regarded as a re-grading claim. The appellant disagrees with this
assessment and contends that there were ongoing and continuous breaches of the Act,
and that in any event, the hearing before the Labour Court was a de novo hearing.
The appeal to this Court
9. The appeal to this Court is grounded on an affidavit of the appellant sworn on the 25th
January, 2017, at paras 3 to 5 of which Mr. Stefanazzi summarises the errors of law into
which he asserts the Labour Court fell. These are as follows:-
a. it failed to recognise the breach of the Act of 1991;
b. it overextended the limits of its role by exonerating the Department on the
preliminary point while at the same time acknowledging that the notice party did
not follow its own procedure as an employer of the plaintiff; and
c. the procedures not followed by the Department should have been held
determinative in the Labour Court’ finding under the Act of 1991.
Factual background
10. The appellant obtained an honours degree in geography from Trinity College Dublin in
2004, a major component of which was GIS. He commenced employment with the
Department (or rather its predecessor) as a temporary clerical officer in June, 2007.
Initially he provided cover for an executive officer who was on leave from the Site
Designation and Plans Unit of the National Parks and Wildlife Service (“NPWS”). It is his
case that at interview with the Public Appointment Service he informed the interviewer
that he was only interested in taking up a position that was closely associated with his
qualification, a major component of which was GIS. He maintains that he was informed
that the Department had a GIS unit but did not have an administrative division and he
was therefore assigned to the Sites Designations and Plans Unit which had a close
working relationship with the GIS unit. On 1st August, 2007 it was decided by the
personnel unit to establish a position on a probationary basis, being that of clerical officer
within the same unit. He maintains that the basis of this offer was that he was successful
in entering a competition for the established position of clerical officer, that he had made
it known that his qualifications would be an asset to the department and that a posting in
the NPWS would be beneficial to his career development. He signed a probationary
contract on 15th August, 2007 for a period of one year. He was made permanent in 2008.
11. The appellant contends that on 23rd July, 2009 it was agreed between Mr. Jim Kelly,
assistant principal of the Site Designations and Plans Unit and the GIS coordinator, Mr.
Robert Ovington, to transfer him from Unit to the GIS to take over from a GIS technician
who was due to take a career break from the end of August, 2009. The appellant
maintains that it was a requirement of the Department that GIS technician candidates
should hold certain qualifications; including a primary degree with GIS or equivalent, and
that he was so qualified. He avers that he has continued to carry out the duties of GIS
technician since joining the unit. He points to the fact that the notice party paid for
Page 4 ⇓
specialist training in the field of GIS and funded a Masters degree course at Dublin
Institute of Technology which he attended during business hours. He was awarded an
M.Sc. in Spatial Information Management/GIS in 2012. In 2013, he applied to become a
member of the Society of Chartered Surveyors Ireland, to what is described as the
Graduate Route 2 pathway and was accepted by the Board of the Society and the
Department.
12. Mr. Stefanazzi places particular emphasis on written observations of the GIS manager,
Mr. Gareth John, in a 2013 review document which was submitted to the personnel unit of
the Department, entitled “GIS Service and Staff Review for Department of Arts, Heritage
and the Gaeltacht”. Mr. John highlighted the situation of a clerical officer in the NPWS GIS
unit carrying out the duties of the GIS technician but not being remunerated accordingly.
The appellant asserts that he was suitably qualified as a GIS professional to fulfil that role
and that the Department facilitated the advancement in his technical ability and
responsibility and paid for his attendance at a number of specialised training courses and
conferences attended by fellow GIS technicians.
13. In an affidavit sworn on the 20th April, 2017, Ms. Ryan avers that the appellant’s case is
built on an erroneous belief that he is employed at a higher grade than he actually is. It
is the Departments case that in 2009 the appellant expressed an interest in becoming
more involved in GIS within the Department. This expression of interest was responded to
positively by management in what is described as a spirit of goodwill and in accordance
with the Department’s business needs. The notice party maintains that the appellant was
clearly informed, on transfer, that by working with the GIS unit he would continue to
serve in the role of clerical officer and that the transfer did not entail him replacing
another GIS employee or assuming duties that had previously been carried out by a GIS
employee. It is also the Department’s case that it was made clear to the appellant that he
would continue to remain part of the Site Designations Unit to which he had been
originally assigned.
14. The Department maintains that Mr. Stefanazzi is and was at all times fully aware that
promotion to a higher grade is only possible through participation in open interview-based
competitions. He has not achieved such position as a result of participation in the official
recruitment process, as required. Recruitment and promotion within the civil service is
managed by the Public Appointment Service operating under the Public Service
Appointments (Management) Act, 2004. No competition for recruitment had taken place
since 2006. Thus, it is contended that in the absence of such competition it was not
possible for the appellant to have been promoted to the role of GIS technician.
15. The notice party also disputes the contention that the appellant has fulfilled the functions
of a GIS technician and draws the court’s attention to the fact that when the Civil Public
and Services Union (“CPSU”) agitated this issue on his behalf, it was informed, and
accepted, that remuneration at the level of GIS technician could only be considered if the
appellant was promoted to a comparable grade of executive officer following participation
in an interview-based competition. The CPSU wrote to the Department on the 18th June,
Page 5 ⇓
2014 asserting that Mr. Stefanazzi had taken on the full GIS technician role from July,
2009, equivalent to executive officer level. The union referred to HSE West v. A Worker
AD 1242 (2012), where the Labour Court found that it was unsustainable to continue an
arrangement whereby different rates are paid for identical work and that the union’s claim
in seeking the application of the appropriate rate for the job was not precluded by the
Public Service Agreements 2010-2014.
16. On 16th April, 2014, a solicitor representing the appellant wrote to the Department and
made the same point. In a reply of 13th May, 2014, the Department stated that since
2009 Mr. Stefanazzi had been assigned to work with the GIS as a clerical officer providing
assistance to the technical staff of that unit and while he had expressed his interest in
developing his career in GIS, in light of the ongoing moratorium on public service
recruitment since 2009, the Department continued to be restricted in its ability to recruit
new staff and to offer promotional opportunities to existing staff.
17. In a further affidavit sworn by Ms. Ryan on 21st June, 2017, she avers that while in
certain circumstances, a higher up allowance is available, it did not apply to Mr.
Stefanazzi as he was not carrying out such work and at all times he worked in the
capacity of clerical officer. To be appointed to an acting up position or a higher duty
capacity position in 2012, the sanction of the Department of Public Expenditure and
Reform was required. If sanction was given, a competitive process would then have to be
undertaken and she maintains that Mr. Stefanazzi was fully aware of the competition
process. Further, she maintains that the duties which were carried out by Mr. Stefanazzi
during the period in question did not carry the same level of responsibility as those
carried out by a GIS Technician Grade 1 staff member. She states that he was the subject
of a lateral transfer which arose from his expression of interest and that he was clearly
aware of the position which he was assuming which was to provide assistance in his
capacity as clerical officer. She exhibits correspondence between the union and the
Department. At all material times the appellant had been employed as a clerical officer
and had been remunerated as such and therefore no unlawful pay deductions were made
under the provisions of the Act of 1991. The appellant participated in a competition for an
executive officer position in 2013 but was unsuccessful. She maintains that the refunding
of fees is not relevant and that the purpose of the scheme is to benefit the employee’s
personal or career development and thus contribute to the overall objectives of the
Department.
18. Ms. Ryan also states that a recruitment moratorium was imposed generally on the civil
service in 2009. However, situations did exist were government departments, with the
prior approval of the Department of Public Expenditure and Reform, could acquire
sanction to fill special positions, subject to available payroll resources, in order to address
existing and emerging business needs. Thus, for example, the competition for promotion
to GIS manager in 2013 was one of those sanctioned exceptions.
19. Mr. Stefanazzi maintains that the eligibility criteria for the GIS manager position for which
he applied in 2013, required a relevant GIS qualification and a minimum three years post
Page 6 ⇓
graduate experience with GIS. He asserts that the fact that he was accepted into this
competition, constitutes an acknowledgement of his role as a GIS technician for a period
of more than three years. Ms. Ryan states that the fact that he participated in such a
competition did not in any way confirm that he satisfied the eligibility requirements.
Qualifications and eligibility are not verified until the final stage of the process and an
invitation to take part in tests, interviews or any other element of the selection process is
not an acceptance of eligibility. The appellant, however, maintains that he had such
experience and therefore satisfied eligibility criteria for the competition, and that funding
under the Payment and Refund of Fee Schemes is only awarded to staff where the
postgraduate qualification is directly related to the role, and his qualification was not
related to the role of clerical officer. Ms. Ryan disputes this and in an affidavit sworn on
12th September, 2017 outlines various factors which are considered and assessed in
order for a successful candidate to qualify for 100% funding. These include the year of
study, the relevance of the course of study to the work of the Department and the level of
the course chosen. She states that the appellant’s application for funding was assessed in
accordance with that criteria.
20. Mr. Stefanazzi contends that the Labour Court did not give due consideration to the
evidence which was presented by him in support of his contention that he was fulfilling
the role of GIS technician. It is clear that his submissions to the Labour Court, which
were referred to in argument before this court, were very detailed and highlighted the
many areas of responsibility, qualifications, training, course studies and duties (including
digital editing of photographs and technical support to the NPWS) which he undertook and
which he maintains are consistent with the role of GIS technician rather than clerical
officer. He alleges that the Labour Court ruling fell short of an appropriate investigation.
He states that the notice party’s assertion that he was not carrying out the role of GIS
technician was with a late attempt to justify not paying him properly.
21. In an affidavit sworn on 18th July, 2017, Mr. Stefanazzi highlights what he considers to
be a contradictory position adopted by the Department in relation to the higher duty
allowance being available to staff of the Department from that which it adopted in the
Labour Court; where it “proclaimed to the Labour Court that the only way in which he
could be paid for the position he was carrying out as a GIS Technician” would be for him
to compete in an external competition, He states that he presented evidence that staff in
the Department were in receipt of an acting up/higher duty allowance, and had been
promoted automatically and without external competition based on those higher duties –
a position which he asserts was conceded to be true. He produced to the Labour Court
and relied on a letter dated 4th October, 2012 from the Secretary General of the
Department in which it was stated that all acting up/higher duties allowances were
restricted under the moratorium and that “where an exception to the moratorium is
allowed, such allowances can only be paid where the acting exceeds a continuous period
of 84 days”. He maintains that in acknowledging that a higher duty/acting up allowance
was available to staff, the Department continued to benefit from him fulfilling the role of
GIS technician. It was not a coincidence, he states, that the Department chose him to fill
this roll. Ms. Ryan in an affidavit sworn by on 12th September, 2017, however, she
Page 7 ⇓
reiterates that promotion to a higher grade, including in an acting capacity, is only
possible through participation in a competitive process. She also maintained that the
appellant was assigned tasks appropriate to his grade and those carried out by him
required a level of supervision which would not be required for a GIS Technician Grade 1.
The Appellant’s submissions
22. The appellant’s submissions were succinctly outlined in the forms/information sheets
completed by him in respect of applications in proceedings involving a litigant in person,
and which he repeated and supplemented in submissions to this court. A number of his
arguments were outlined in his affidavits and have been referred to earlier in this
judgment. Mr. Stefanazzi submits that the court has jurisdiction to intervene and should
do so and that despite the Labour Court being provided with substantive evidence in
support, it dismissed the claim without taking cognisance of the facts and thus acted in
breach of the Act of 1991. He also contends that he had a legitimate expectation to be
awarded an acting up allowance for the role which he was fulfilling. He relies on a number
of authorities which are referred to below. He submits that the Labour Court erred in law
in not affording him the opportunity to present his evidence, that it erred in deciding to
hear a preliminary issue rather than to allow him to present all his evidence, that it erred
in affording undue weight to the absence of procedures and in failing to recognise that
there had been a breach of the provisions of the Act of 1991. Reliance is also placed on
the decision of O’Malley J. in Minister for Education and Science v. The Labour Court & Ors
[2015] IEHC 429. He requests this Court to determine whether the Labour Court erred in
law by making its decision on a preliminary point and submits that it came to its decision
without examining the facts or affording him the opportunity to present his evidence.
23. The appellant relies on the Labour Court decision in HSE West where the Court upheld the
recommendation of the Rights Commissioner and ordered that an employee be placed on
an appropriate salary scale to reflect her duties at work, despite the argument of the
employer that a moratorium had been placed on promotions at the time the claim arose.
He submits that this constitutes a correct interpretation of the claim as being an
application of an appropriate rate for the job, rather than an application for an increase in
an existing rate. He also relies on a decision of the Employment Appeals Tribunal (“EAT”)
in Malanaphy v. Minister of Transport, Tourism and Sport W 655/2012 (2012) where the
applicant was seeking to be paid in line with his predecessors. The EAT was satisfied that
the appellant had fulfilled the same role albeit under a different title which was not
graded. The EAT concluded that it was fundamentally unfair to deny the appellant like
payments for like work solely based on the premise that the new named position had not
yet been graded.
24. Mr. Stefanazzi also argues that he has a legitimate expectation to such pay because he
was carrying out the role of GIS technician in similar manner as his GIS technician
colleagues.
He does not maintain that he had been re-graded but contends that he has been carrying
out the duties of a GIS technician. A central thrust of his argument is that by not having
procedures, as opposed to not following them, the notice party may circumvent its
Page 8 ⇓
statutory obligations. Insofar as the preliminary issue is concerned, he informed this court
that there may have been a misinterpretation of what was being proposed by the Labour
Court. It is to be observed, however that a case is not made by Mr. Stefanazzi on
affidavit that he was in any way misled by the Labour Court in relation to its proposal to
deal with the matter by way of preliminary issue. Indeed, at para. 7 of the affidavit sworn
by him on 15th May, 2017 he avers:-
“I say that during the Labour Court hearing the Plaintiff brought the Court’s attention to
parts of his submission as at the Court’s resolve it wanted to examining (sic) how
wages become properly payable to a civil servant. However I believe the Plaintiff’s
submission as a whole which was submitted to the Labour Court within the
statutory period of time prior to the hearing more than validated such a preliminary
point as brought to the fore by the Labour Court.”
The Notice Party’s submissions
25. Mr. Leonard B.L., on behalf of the notice party, submits that as this is an appeal on a
point of law from the determination of the Labour Court due respect must be shown to
that decision. The Labour Court is a specialist body in the area of industrial relations
disputes and the principle of curial deference applies. This is particularly so where the
court is called upon to resolve disputes of a factual nature. That this court may disagree
with a factual conclusion is not a sufficient basis upon which to intervene and it can only
do so where the conclusion is so abhorrent to logic and common sense, or involves an
where Noonan J. reiterated the reluctance of the courts to interfere with a finding of fact
by the Labour Court and would only do so if the finding was irrational, unreasonable and
was not supported by the available evidence. It is contended that the finding under
challenge cannot be described as unsustainable but was an entirely logical and rational
decision based on a comprehensive and fair analysis of the information which was before
the Labour Court. It is submitted that the claim pursuant to the Act of 1991 is based on
the applicant’s erroneous belief that he was employed at a higher grade than was the
case. Counsel suggests that reliance by Mr. Stefanazzi on the comments in Mr. John’s
report confirms that Mr. Stefanazzi was employed as a clerical officer. He submits that the
Labour Court considered Mr. John’s evidence and his report but ultimately what the Court
was obliged to consider was a complaint under the Act of 1991.
The role of the court on appeal
26. In Fitzgibbon v. Law Society [2015] 1 I.R. 156, Clarke J. (as he then was) observed at
para. 73:-
“Where the legislature confirms a right to a statutory appeal, it must evidently be
assumed that this was intended to have some meaning and some purpose. Where,
for example, judicial review is independently available, it must be considered as
conferring some additional benefit(s) on the appellant. Something separate from a
mere ‘test’ for legality, or the mere quashing or remitting of a decision based on
standard judicial review grounds. The range of possibilities in this regard is
extensive, varying from a full appeal, as from the Circuit Court to the High Court on
Page 9 ⇓
circuit (s. 38 of the Courts of Justice Act 1936), to one strictly limited, say on a
point of law, perhaps even further limited by the nature of the point and only then
on due certification by the trial court (see as examples, s.29 of the Courts of Justice
Act 1924 as substituted by s. 22 of the Criminal Justice Act 2006 and as later
amended and s. 50(3)(f) of the Planning and Development Act 2000). In between,
one can find several other variable forms of ‘appeal’. It therefore follows that the
availability of such a right does not mean that all reviews, by way of appeal, are
necessarily the same: quite obviously they are not. As Costello J. pointed out in
Dunne v. Minister for Fisheries [1984]1 I.R. 230, ‘in every case the statute in
question must be construed’ (p.237). Barron J. in Orange said ‘the test for
competition cases cannot be a guide for other cases’ (p. 238): certainly, without
much concordance on many other important factors, this surely must be right. This
therefore being the situation, it then becomes necessary to consider each legislative
framework in its own right”.
27. Clarke J. acknowledged that expertise and knowledge is at the very heart of the rule and
that the greater level of expert knowledge which a body has, the greater should be the
respect; but cautioned against the over application of the principle of curial deference.
is limited and it may intervene only where it finds that the decision is based on an
identifiable error of law or an unsustainable finding of fact. The authorities in this point
highlight the fact that such decisions are made by expert administrative tribunals and
furthermore that when it comes to the question of fact, a practical reason for the
reluctance to interfere is that this Court has not heard the evidence which the Labour
Court had the benefit of hearing. Thus, for example, in Dunnes Stores v. Doyle [2014] 25
ELR 184, Birmingham J. considered that findings of fact by the EAT was deserving of
great respect as it was at a tribunal representing both sides of industry.
29. It is clear that the role of this court on an appeal such as this is limited. It may only
intervene where an error of law has been demonstrated or where a finding of fact has
been made which is unsupported by the evidence presented to the Tribunal below. In the
light of the appellant’s submissions, written and oral, in essence, therefore, a principal
issue to be addressed on this appeal is whether, as a matter of law, the court erred in
determining the matter by way of preliminary issue.
Decision
30. In the affidavits and submissions of the appellant, no ground of appeal is suggested to
arise on the basis of the inadequacy of reasons provided by the Labour Court for adopting
the preliminary procedure and framing it in the manner in which it did. The court
acknowledges that Mr. Stefanazzi was unrepresented before the Labour Court. It may be
that had he been represented, the course of action proposed by the Labour Court might
not have been acceded to. Nevertheless, in the light of the contention that the Labour
Court erred in law in its approach, and in the interest of justice, it is relevant to consider
its jurisdiction in relation to the procedures employed.
Page 10 ⇓
31. Section 20(5) of the Industrial Relations Act, 1946 empowers the Labour Court to make
rules for the regulation of its procedures. Section 20 was amended by s. 50 of the
Workplace Relations Act 2015, pursuant to which the Labour Court (Employment Rights
Enactments) Rule 2016 were adopted. Rule 57 provides:-
“The Court may, in its discretion, give a preliminary ruling on any aspect of the
case where it is satisfied that time and expense may be saved by the giving of such
a ruling.”
Rule 47 also provides that the conduct of the hearing of an appeal is to be regulated by
the chairman of the division of the Labour Court before which the appeal takes place. For
the sake of completeness it is to be noted that these rules have now been replaced by the
Labour Court Rules 2019 which at rules 41 and 31 make similar provisions in respect of
preliminary rulings and the conduct of the hearing. Therefore, it appears to me that the
Labour Court had the power to proceed by way of preliminary ruling if satisfied that time
and expense might be saved in so doing.
32. There is no reference in the determination of the Labour Court as to the basis upon which
it considered that the preliminary issue, as defined by it, had the potential to be
determinative of the case. Little insight is presented as to the basis upon which as a
matter of law the Labour Court concluded how wages become properly payable to a civil
servant in the Department, was potentially determinative of the issues before it. It would
seem that this was a procedure which the court itself raised and adopted. Further, there
is little discussion as to the meaning or correct interpretation of the expression “properly
payable” in s. 5(6) of the Act of 1991.
stressed the obligation on a decision maker to provide reasons for its decisions. He
concluded, in the circumstances of that case, that there had been a manifest error of law
in the Tribunal’s interpretation of s. 5 of the Act of 1991. It had determined that under s.
5(1)(c) the written consent of the employee was required before the company could bring
about any changes to salary levels. He further concluded that the Tribunal had failed to
provide adequate reasons for a number of its findings. While the duty to give reasons did
not require extensive analysis of every aspect:-
“…and indeed, as held in Faulkner, the 'gist' of the basis for a decision is sufficient.
However, in the present case I am satisfied that the brief determination of the
Tribunal is wholly inadequate to meet even this low threshold. It is not clear how
the Tribunal arrived at the determinations it did and there is not as much as a
fleeting reference to vital matters such as the 'reduction or deduction' argument or
why section 8.2 of the company handbook is not applicable”.
34. Submissions had been made relating to relevant sections of the contract of employment
handbook but there was no finding in relation to them. He continued:-
Page 11 ⇓
“There is no engagement whatsoever, however minimal, with the detailed
submissions of the appellant in relation to its financial circumstances at the time
and no consideration of the circumstances relied upon by the appellant for
introducing the pay cut”.
He was satisfied that the Tribunal had erred in failing to apply well-established principles
of construction to the provisions of the handbook and in failing to give reasons for its
finding. Importantly, he stated:-
“Both sides were in dispute on this point and the decision of the Tribunal fails to
indicate which submission was preferred and why” (emphasis added).
35. It is evident from the passage above that there was a conflict between the parties as to
the proper manner in which the handbook should be construed and Kearns P. was critical
of the inadequacy of the reasons given for the decision of the EAT. In this case, however,
it is clear from the express wording of the determination of the Labour Court that the
parties accepted its decision regarding the preliminary issue and made submissions on the
mechanisms undertaken or employed to assign a rate of pay or to upgrade in the
Department. It is difficult to see a basis upon which it might be contended that where the
parties have consented to, or have accepted a particular procedure, that one who is
subsequently disappointed with the outcome ought to be entitled to protest that the
procedures which were employed were unfair or arose as a result of an error of law. It is
not suggested by Mr. Stefanazzi in the affidavits sworn in support of this appeal that he
was in some way misled by the Labour Court. Although to this Court he submitted that
there may have been a misunderstanding about what was proposed by the Labour Court,
the extract from his affidavit referred to in para. 24 above, would tend to suggest that he
was satisfied that the Labour Court had information before it to determine the case on a
preliminary basis.
36. While I have considerable sympathy with the argument made by Mr. Stefanazzi in
connection with the nature of the duties being fulfilled by him, many of which tend to
support and corroborate his argument that he was in fact fulfilling the duties of a GIS
technician, the fact of the matter is that the express determination of the Labour reflects
an agreed approach to the determination of the issue on the preliminary basis proposed.
Given the limited role of this Court on an appeal such as this, the room for intervention
must, of necessity, be limited.
37. It is true that the Labour Court does not provide any specific reason as to how it came to
its decision to proceed by way of preliminary issue. It seems to me that if there had been
an absence of consensus, a disagreement or demur from the suggested course of action,
there may be merit in an argument that the failure of the Court to provide reasons as to
why it adopted such approach might lead to its determination being susceptible to
successful challenge on appeal on the basis of the reasoning of Kearns P. in Earagail Eisc
Teoranta. However, the fact that this was a procedure which was acceded to at the time,
and upon which submissions were made leads me, not without some hesitation, to the
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conclusion that it would be inappropriate to interfere with the determination of the Labour
Court on this basis.
38. Even if I am incorrect in this, having considered the evidence and in particular the
evidence placed before the Labour Court and to which this court was referred in
argument, I am satisfied that there was material before the Court upon which it was open
to it to conclude as it did, although that is not to say that this court would necessarily
have taken the same view of the facts.
39. An analysis of the decision reveals essentially two findings. The first relates to the
absence of a procedure being followed which would create a rate of pay property payable
other than that which was received. The court earlier in its determination had described
as being common case the position of the parties that a procedure had to be followed in
order to apply such a rate of pay. On that basis, it is difficult for this court to intervene
where the issue was approached on the basis of a consensus of the parties and in
accordance with the general powers of the Labour Court to determine preliminary issues.
In any event, in my view there was evidence before the Court on which it might come to
that determination. Similar reasoning applies to the second finding on the basis of the
facts then presented to it - whether at the relevant time Mr. Stefanazzi was assigned
acting up/higher duty allowance or awarded a grade other than that of clerical officer or
otherwise had a higher rate of pay apply to him, the Labour Court noted that the
application of any greater allowance following the execution of such procedure required
the sanction of the Department of Public Expenditure and Reform and that it was also
common case that at no time was such procedure followed in relation to the appellant in
order to secure for him a higher grade or acting up/higher duty allowance.
40. To deal with certain of the authorities relied upon by Mr. Stefanazzi, in HSE West, the
Labour Court was concerned with an application under the Industrial Relations Act, 1969,
in particular s.30(9) in the context of a dispute as to whether a worker should be
upgraded to a social work team leader salary. It was contended that the worker was
carrying out more work for significantly less pay than her colleagues. The employer
argued that the claim was precluded by the terms of the Public Service Agreement 2010-
2014 and there was no standardised grade/rate of pay for people undertaking the work in
question. The union argued that the case predated the moratorium on promotion and the
Public Sector Agreement and contended that the social work team leader scale was the
appropriate rate for the job, a view shared by the claimant’s managers. The Labour Court
found that it was unsustainable to continue an arrangement whereby different rates were
paid for identical work. In the circumstances, the Labour Court decided that the union’s
claim should properly be classified as being for the application of the appropriate rate for
the job, in the nature of an individual re-grading, rather than for an increase in the
existing rate. As such, the claim was not precluded by the Public Service Agreement. Mr.
Stefanazzi submits that this constitutes a correct interpretation of the claim as being an
application for an appropriate rate for the job, rather than an application for an increase
in an existing rate. The precise factual background is not entirely clear and it is further
unclear whether it was necessary to follow a particular procedure, whether by way of
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open competition or otherwise, with regard to the job being fulfilled. Further, it seems
clear from the decision that it concerned an appeal from a recommendation of the Rights
Commissioner regarding an upgrading claim and the court did not consider the provisions
of s. 5(6) of the Act of 1991. The case also predated the moratorium on promotion and
the Public Sector Agreement.
41. Malanaphy concerned an appeal to the EAT from a decision of the Rights Commissioner
under the Act of 1991. It is more on point. The appellant therein was appointed Coastal
Unit Sector Manager. He took over the position when those previously in the position
were promoted. He was not paid a shift allowance, on-call allowance, increments, or
Sunday supplement which, as he alleged, his predecessors who were of the same grade
were paid. The notice party, the Minister for Transport, Tourism and Sport, argued that he
was not graded at the relevant time. There was a factual issue as to whether the
appellant knew or ought to have known that he would be entitled to such allowances and
increments as part of his package. He claimed that he had a legitimate expectation in
relation to such payments, formed on the basis of the information supplied to him and by
precedent which had been set by payments made to his predecessors. The EAT concluded
that he had carried out the same role as his predecessors, albeit he was given a different,
ungraded, title and that it was fundamentally unfair to deny the appellant like payments
for like work solely based on the premise that the newly named position was not yet
graded. It found that he had a legitimate expectation that payments would be made as he
claimed. There was therefore a breach of the implied terms of his contract as a result of
which the provisions of s. 5(6) of the Act had been transgressed. Again, although more on
point than HSE West it is not entirely clear that the facts are similar to that in the instant
appeal and I note that a fact in dispute was one of grading; and that a newly named
position was not yet graded.
42. Further, it is not clear that the decision in Minister for Education and Science v. The
Labour Court is directly relevant. It concerned an issue which arose under a different
legislative regime. It was an application for judicial review and the court was there
concerned with the claim under the Protection of Employees (Part-Time Work) Act, 2001.
It was held that, although not a national school teacher or a teacher in a recognised
school, the Labour Court was correct in determining that she was employed on the same
basis as such teachers and that teachers whose salaries were publicly funded must be
deemed to be employees for the purposes of that legislation.
43. In all the circumstances, and not without some sympathy, I find that Mr. Stefanazzi, a
most courteous individual and on the basis of the information before this court, a very
diligent worker, has failed to discharge the onus of proof which is upon him and therefore
I must dismiss the appeal.
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