McAllister v The Northern Ireland Fire and ... [2009] NIIT 1632

THE INDUSTRIAL TRIBUNALS

CASE REF: 1632/08 & 1642/08

CLAIMANT(S): Robert Andrew McAllister

Alan James Cunningham – Lead Cases

RESPONDENT(S): The Northern Ireland Fire and Rescue Service

DECISION

The unanimous decision of the Tribunal is that the respondent did not make an unlawful deduction from the claimants’ wages from the 1st February 2008 and continuing contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 as amended.

Constitution of Tribunal:

Chairman: Ms J Knight

Panel Members: Mrs Teresa Madden

Mr Norman Wilkinson

Appearances:

The claimants were represented by Mr G Grainger Barrister at Law instructed by Gus Campbell LL.B Solicitors.

The respondent was represented by Mr P Ferrity Barrister at Law instructed by Belfast City Council, Legal Services Department.

1. ISSUES

The issues to be determined by the Tribunal were:-

1. Whether the respondent made an unlawful deduction from the claimants’ wages from the 1 February 2008 and continuing contrary to the provisions of the Employment Rights (Northern Ireland) Order 1996 as amended

2. If so, whether the Respondent failed to comply with the requirements of the Statutory Grievance Procedure.

The Tribunal heard the oral evidence of Station Commander Harry Dawson, Watch Commander Alan Cunningham, Assistant Group Commander Lenny Entwhistle, Watch Commander Brian Hassan, Watch Commander Robert McAllister, Watch Commander John (Sean) McGlone, Area Commander Christopher Kerr and Chief Fire Officer Colin Lammey. The Tribunal also read and took into consideration those documents to which its attention was drawn by the parties and their representatives during the course of the hearing.

2. FACTS

The Tribunal found the following relevant facts to be proven on a balance of probabilities:-

1. The claimants, Alan Cunningham and Robert McAllister have been employed by the Respondent since the 9 August 1992 and the 12 January 1987 respectively. Both are currently Watch Commanders line managed by Station Commander Dawson at Belfast Central Fire Station, a multi hub station, in the Eastern Area of the respondent Fire Service. Prior to 18 February 2006 the claimants were employed as Sub-Officers and were second in command to the Station Officer who was in charge of the watch. At that time there were four Station Officers in charge of each Watch.

2. In 2005 in accordance with the government’s modernisation agenda, the Fire and Rescue Service commenced a national rationalisation process known as the “rank to role assimilation” whereby twelve ranks within the service were reduced to seven roles which were based on agreed role maps. Guidance was issued by the National Joint Council for local authority fire and rescue services on the 24 August 2005 in circular NJC 09/05 which provided guidance on a number of matters including allocating a job to a role, determining job size, the provision of a model appeal procedure and principals to apply to job descriptions. The guidance is not prescriptive and it envisages that local authorities may take account local peculiarities to ensure “best fit” in implementation. Effectively job assimilation was a two stage process involving firstly allocating the job to the role and then determining job size.

3. NJC Circular 09/05 specifies that within a given role map there will be different job sizes and provided for “A” and “B” determinations. The “B” determination attracts higher remuneration and is intended to reflect a greater job size within the same role than an “A” determination. The guidance cites a “simple example” which compares the role of a Watch/Station Commander at a station with one appliance with the role of a Watch/Station Commander at a station with more appliances. The guidance states that it would be expected that the Watch/Station Manager at the one appliance station would have a smaller job size than the latter and that the primary determination for allocating job size is resource management of both people and equipment. The NJC Guidance provides an appeals procedure for those officers who disagree with either the role or job size within the role to which they are assimilated.

4. The rank to role changes took effect in Northern Ireland from the 1 February 2008 in the Western Area and from 18 February 2006 in the Eastern Area. The claimants were assimilated to the role of Watch Commander grade A as were all sub officers in Northern Ireland. At this stage Station Officers were removed from the Watch and Watch Commanders effectively took charge of the watch. The claimants accepted that they were correctly assimilated to the role of Watch Commander, however they take issue with the “A” determination and contend that the respondent failed to apply the NJC 09/05 guidance when determining the job size of Watch Commanders of multi pump stations.

5. The claimants and other Watch Commanders therefore lodged appeals which were dealt with collectively under the appeals process. Deputy Chief Fire Officer Louis B Jones was tasked to deal with the appeal on behalf of the respondent and Watch Commanders Cunningham and Hassan represented the Watch Commanders. Parallel requests were made under Freedom of Information legislation by Watch Commanders Cunningham and Watson seeking disclosure of information as to how the Respondent concluded that sub officers on multi pump stations were to be assimilated to Watch Commander A pay scale and not Watch Commander B pay scale. It became apparent that the respondent had determined job size by canvassing two sub officers in their role as second in command on the Watch rather than in their new roles as officers in charge of the watch.

6. The appeal was heard on the 2 October 2006 and Watch Commander Cunningham made detailed submissions which were prepared with the benefit of legal advice. On the 23 October 2006 the Deputy Chief Fire Officer wrote to Watch Commander Cunningham: “You are quite correct to point out that the NJC Circular 09/05 does highlight the issue of Watch Manager job size as an example of how to differentiate between allocations within the same role and, in the light of the evolving new line management arrangements where the Station Commanders have been removed from the Watch structure, I am recommending to the Chief Fire Officer that the impact of this be carefully analyzed to determine to what extent, if any, this has impacted upon the original allocation of role.” He stated that the claimants’ assimilation to Watch Manager A would remain in place until completion of the review and that he would defer his decision on the outcome of the appeal until after the review.

7. The Review was subsequently carried out by Area Commander Kerr. Following his investigations Area Commander Kerr compiled a report dated 31 January 2007. His report accepted that Watch Commanders were carrying out the duties of the previous Station Officers (who had been removed from watches in the rank to role process) and made five recommendations:-

a. That a rank to role assimilation process be conducted in respect of personnel currently performing the role of Watch Commander Rider on multi appliance stations.

b. The role of Watch Commander Rider in multi appliance stations is reviewed to determine if the work activities associated with that role are reasonable and sustainable within the existing watch structure.

c. That the role of Station Commander is reviewed to determine if any of the key tasks and responsibilities of the former Station Officer Rider currently being performed by the Watch Commander Rider are more appropriate to the Station Commander Role.

d. That the review of the Station Commander role should include the development of a model for effective station management with a key feature being a structure to enable District Commanders to focus on the key management responsibilities identified in their job description.

e. That without prejudice to these reviews, the Northern Ireland Fire Service should acknowledge that the current Watch Commander Rider on multi appliance stations have in fact been performing the role of former station Officer Rider prior to rank to role implementation and that the Northern Ireland Fire Service should access whether the performance of these duties warrants additional payment for the period the duties have been performed.

At the Tribunal hearing Area Commander Kerr clarified that this report did not deal with the job size of Watch Commanders of multi pump stations. There has not been any further assessment of the claimants’ job size.

8. Following on from these recommendations Area Commander Kerr was instructed to carry out a further review into the role of Station Commander on whole time shift stations following rank to role assimilation the current work activities. In his report dated 4 June 2007 he made further recommendations in relation to role shift patterns and work activities of station commanders. These recommendations were authorised for implementation by the Chief Fire Officer 25 September 2007 so that each whole time shift station within the Eastern and Western command should have a dedicated Station Commander working day shifts only to perform the task and work activities associated with that role map who would also have a functional responsibility within the district structure in terms of operations, training and community development. In addition it was recommended that Station Commanders should not normally provide operational response cover on a daily basis and should take responsibility for work activities which were being undertaken either wholly or in part by the Watch Commanders on whole time multi appliance stations.

9. Area Commander Kerr sent memos on 3 December 2007 to Station Commanders and the 28 December 2007 to Watch Commanders confirming the new role and working arrangement, revised responsibilities and amended job description of Station Commanders. Eight Station Commanders were phased into post by

1 February 2008. On the 19 February 2008 Area Commander Kerr informed the Chief Fire officer that the implementation was complete. He told the Tribunal that he was satisfied that all issues had been addressed by the implementation of these recommendations and that the role of Station Commander was now, as was initially envisaged, at the start of the assimilation process.

10. On the 8 May 2008 the Deputy Chief Fire Officer wrote to the claimants to advise that he had determined that their current role was correctly assimilated at Watch Manager A and “your appeal is therefore not upheld”. It was acknowledged that between the 1 February 2006 and 31 January 2008 Rider Watch Commanders carried out “additional duties for this period and the duties undertaken were commensurate with the role of Watch Commander B. However with the introduction of the Station Commanders in February 2008 the substantial role of Rider Watch Commanders has been determined as Watch Manager A, this is the current situation.” He further advised that a payment would be made retrospectively to reflect “the additional duties carried out by you from the 1 February 2006 until the 31 January 2008. This in effect means you will be paid the difference between the role of Watch Manager A and Watch Manager B for that period. As you would expect payment will exclude payments during periods of temporary promotion to a different role”. The claimants acknowledged at the hearing that this additional payment was consequential upon the first recommendation of Area Commander Kerr in his initial report as recognition that the claimants had performed extra duties associated with the old station officer role.

11. Watch Commander Cunningham (and some other Watch Commanders) wrote on the 10 May 2008 to the Chief Fire Officer requesting a further appeal because it was considered that the Deputy Chief Fire Officer’s letter implied that there had been a further assimilation of the Watch Commander role. The Chief Fire Officer responded on the 20 June 2008 that there was no entitlement to a new appeal process and that there was no further right of appeal.

12. Watch Commander Cunningham then raised a grievance by letter dated 7 August 2008 to the Chief Fire Officer. He stated that the installation of Station Commanders had not removed any duties from him and that his rate of pay should remain at Watch Commander B rate until such duties were removed. He requested that his letter be treated as a formal grievance under the Respondent’s grievance procedure and pursuant to the statutory dispute resolution regulations about the non-payment of wages due to the 31 January 2008 and the ongoing non-payment until duties are transferred to Station Commanders. At this time the respondent had not yet paid the additional payment referred to in the letter of 8 May. Watch Commanders Cunningham and McAllister were paid the additional payment in September 2008 which is shown on the pay advice slips as a variation in wages. He sent another letter dated the 11 August 2008 adding a further grievance that there had been no determination as to whether or not there is a distinction to be drawn between the job size of Watch Commanders in multi appliance stations and those working in single appliance stations. Similar grievances were lodged by Watch Commander McAllister and other Watch Commanders.

13. On the 1 September 2008 Area Commander Kerr sent an acknowledgment to Watch Commander Cunningham. No acknowledgement was sent by the Respondent to Watch Commander McAllister in relation to these matters. Following reminders to him about their grievances by Watch Commander Cunningham and Watch Commander McAllister on 17 and 18 September 2008, the Chief Fire Office wrote to Watch Commander Cunningham on the 13 October 2008 advising him that as a number of similar grievances had been lodged he intended to treat them as a collective grievance and that these would be dealt with by Area Commander Kerr. Watch Commander Cunningham wrote to the Chief Fire Officer on the 26 October 2008 objecting to the matter being treated as a collective grievance. He expressed concern that he was unaware of the identity of and location of the other Watch Commanders who had lodged similar grievances and therefore would have a difficulty. He also objected to Area Commander Kerr dealing with the grievance because of his previous involvement in the review which was connected with the subject matter of the grievance. Area Commander Kerr sent memoranda to the Chief Fire Officer dated 9 and 11 December 2008 in which expressed his own reservations as to being involved in the conduct of the grievance in view of the objections raised. Nevertheless the Chief Fire Officer wrote to Watch Commander Cunningham rejecting his objections and stating that the grievance hearing would proceed on the 18 December 2008 conducted by Area Commander Kerr. Watch Commander Cunningham told the tribunal that he considered that this amounted to an order from the Chief Fire Officer. In fact the grievance hearing was postponed by mutual agreement between Area Commander Kerr and Watch Commander Cunningham because of leave arrangements and because the latter requested further time for him to contact the other Watch Commanders involved and to prepare for hearing.

14. On the 27 February 2009 Area Commander Kerr wrote to Watch Commander Cunningham asking him to make contact in relation to the progress of the grievance. On the 3 March 2009 Watch Commander Cunningham wrote to the Chief Fire Officer advising that he would not meet with Area Commander Kerr and that he had lost confidence in the internal process as a whole. At the time of the hearing for the Industrial Tribunal the grievance is extant. No correspondence has been sent directly to Watch Commander McAllister or indeed any other Watch Commander who had submitted a grievance. The respondent’s grievance policy does provide for a grievance to be dealt with as a collective grievance but no separate procedure is set out for collective grievances.

15. Both claimants lodged their originating complaints on the 5 November 2008 complaining that the Respondent had made unlawful deductions from wages from the 31 February 2008 and continuing. The parties agreed at the hearing, subject to liability, that up until the date of the hearing the unlawful deduction from wages amounted to £ 2008.02 net in the case of Watch Commander Cunningham and £ 2261.98 in the case of Watch Commander McAllister. The claimant’s are seeking an uplift of compensation because of the respondent’s alleged failure to complete the statutory grievance procedure.

3. CONTENTIONS OF THE PARTIES

1. It was contended for the claimants that from the date that they were assimilated to the role of Watch Commander to the 31 January 2008 they were paid, albeit retrospectively, at the B rate of pay, which was the rate properly payable and the wages to which they were contractually entitled. The claimants continued despite the purported changes to the role of Station Commander, which were introduced without any policy change, to carry out the same duties after the 31 January 2008 without any alteration but were not paid the amount due and owing for the work carried out. The decision of the respondent to discontinue the payment after the 31 January 2008 and the continuing failure to make this payment constitutes a deduction from wages within the meaning of the 1996 Order. Mr Grainger BL further contended that the respondent had determined that the B rate was properly payable for the period from the 1 February 2006 to the 31 January 2008 and therefore it followed that the respondent had determined that the correct rate to pay for Watch Commanders in charge of multi pump stations in accordance with NJC Circular 09/05 was the B rate payment. The claimants contend that the difference between the B rate of pay and the A rate of pay including associated pension benefits continues to be unfairly deducted.

2. It was further asserted on behalf of the claimants that the respondent had failed to deal with their grievances in accordance with the Statutory Grievance Procedure because the respondent sought to deal with these grievances on a collective basis and no response at all was provided to Watch Commander McAllister. Furthermore the claimants contended the manner in which the Respondent sought to process the grievance was flawed and in breach of the rule of natural justice in seeking to impose an investigation by Area Commander Kerr in the face of objections by the claimants.

3. It was contended on behalf of the respondent that the claimants had to show that the respondent had made an unlawful deduction from wages contrary to Article 45 of the 1996 Order and that any deductions that were made from wages which were “properly payable”. The respondent questioned whether the monies paid to the claimants in a lump sum and retrospectively could properly be “wages” within the meaning of the 1996 Order. Mr Ferrity BL conceded that the payment had some characteristics of wages in that it was detailed on the claimant’s pay slips and was referred to in correspondence as “wages”. Mr Ferrity BL took issue with the claimants’ contention that the monies paid were paid at the rate for work done or the equivalent at the B rate for Watch Commander as it was clear that the additional amount was paid for duties carried out by the Watch Commanders of the former Station Officer Role calculated with reference to the B rate of pay. It was suggested that if the claimants genuinely considered that they were contractually entitled to payment of the B rate they would have made a claim in the County Court for breach of contract or could have resigned and made a claim for unfair constructive dismissal but did not do so. It was further suggested that the claims were made out of time.

4. It was further contended that the claimants were attempting to re-run the appeal before the tribunal rather than making a claim for unlawful deduction from wages. The claimants’ contract of employment as amended which assimilated them to Watch Commander grade A rate of pay shows that they were not entitled to grade B rate. The fact of the payment of the extra sum was to cover a period from February 2006 until the 31 January 2008 when they carried out extra duties associated with the old station officer role. There was no evidence thereafter that it was intended to change the claimants’ pay to Watch Commander B rate. Mr Ferrity BL submitted that the claimants were only entitled to an up lift for a failure to comply with the statutory grievance procedures if the Tribunal found that there had been an unlawful deduction from wages as there is no free standing right to compensation for failure to comply with statutory procedures.

4. THE LAW

1. An employee has the right not to suffer unauthorised deductions which is conferred by Article 45 of the Employment Rights (Northern Ireland) Order 1996 as amended;-

45.—(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this Article "relevant provision", in relation to a worker's contract, means a provision of the contract comprised;-

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

2. The meaning of "wages" is set out at Article 59 of the Order which provides:

59.—(1) In this Part "wages", in relation to a worker, means any sums payable to the worker in connection with his employment, including;-

(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise properly payable……

The tribunal was referred to the cases of Delaney v Staples [1991] IRLR 112 C.A and the judgment of the House of Lords in the same case [1992] IRLR 191 and Robertson v Blackstone Franks Investment Management Ltd [1998] IRLR 376.

3. Article 55 of the Order prescribes the time limits for making a complaint of unlawful deductions from wages.

55. (1) A worker may present a complaint to an industrial tribunal—

(a) that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50( 2)),

(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with—

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made…

(3) Where a complaint is brought under this Article in respect of ——

(a) a series of deductions or payments…

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

4. The statutory grievance procedures apply to claims under Article 45 of the 1996 Order. The standard three step procedure is set out in Schedule 2 of the Employment (NI) Order 2003:

Step.1: Grievance. The employee must set out the grievance in writing and send the statement or a copy of it to the employer.

Step 2: Meeting (1) The employer must invite the employee to attend a meeting to discuss the grievance.

(2) The meeting must not take place unless -

(a) the employee has informed the employer what the basis for the grievance was when he made the statement under paragraph 6, and

(b) the employer has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision as to his response to the grievance and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3 Appeal(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer

            must invite him to attend a further meeting.

      (3) The employee must take all reasonable steps to attend the meeting.

      (4) After the appeal meeting, the employer must inform the employee of his final

decision.

4. Article 17(2) of the 2003 Order makes provision for an industrial tribunal to increase or decrease an award where one of the parties has failed to comply with the statutory procedures:

(2) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that -

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee -

(i) to comply with a requirement of the procedure, or

(ii) to exercise a right of appeal under it,

it shall, subject to paragraph (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50 per cent.

(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that -

(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) the statutory procedure was not completed before the proceedings were begun, and

(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,

it shall, subject to paragraph (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.

(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.

5. Conclusions.

1. The Tribunal was satisfied that the claimants’ originating complaints were lodged in time by virtue of Article 55(3) of the Order and therefore went on to consider whether in the circumstances the claimants were entitled to be paid the Watch Commander B rate of pay as from the 1 February 2008 onwards by virtue of Article 59 of the 1996 Order under their contract of employment or otherwise.

2. The claimants were assimilated to Watch Manager Grade A as part of the nationally agreed rank to role process. It is the claimants’ case that their job size was wrongly assimilated as grade A due to the failure of the respondent properly to apply the NJC 09/05 Guidance and specifically in the failure to apply the simple example set out in the guidance as to how job size is to be determined. The claimants’ appeal was unsuccessful and following this they lodged grievances.

3. The Tribunal rejects the contention that the letter of the 8 May 2008 shows that the respondent effectively assimilated the claimants to grade B for the period from the 31 January 2006 to 2008 or that the appeal was successful or even partially successful. The letter of 8 May 2008 set out in terms that the appeal was not upheld and sets out the basis upon which the additional payment was made. The claimants acknowledged at the hearing that this additional payment was consequential upon the recommendation of Area Commander Kerr in his first report as recognition that the claimants had performed extra duties associated with the old station officer role. At all stages of the process it was made clear to the claimants that their posts would remain graded at Watch Manager A rate.

4. The Tribunal is satisfied that the sum paid to the claimants in September 2008 did constitute pay within the meaning of the 1996 Order but determines that this was for a temporary period. The Tribunal rejects the claimants’ contention that this imposed an obligation on the respondent to continue to pay them at the Grade B rate. The Tribunal is satisfied that there was no mutual agreement between the parties to vary the terms of employment so that the claimants would continue to be paid at the B rate until extra duties were removed from them. Therefore the Tribunal concludes that the claimants were not contractually or otherwise entitled to receive the B rate of pay. This being the case the Tribunal cannot hold that there has been an unlawful deduction from wages from 1 February 2008 to the present date.

5. The Tribunal does not consider that it is in a position to determine whether the introduction of Station Commanders led to a reduction in the job size of Watch Commanders, although it noted that the respondent did not lead any evidence to contradict the claimants’ assertion that they continued to carry out the same duties after 1 February 2008 as they had before that date. The Tribunal is of the view however that this applies to all Watch Commanders whether of a single or multi pump stations. Nevertheless it was conceded by the respondent that the claimants’ job size has not yet been properly assessed. The Deputy Chief Fire Officer deferred making a decision on the claimants’ appeal until after a review of the role of Watch Commander job size and that Area Commander Kerr confirmed at the hearing that neither review carried out by him addressed the issue of the job size of the Watch Commanders of multi-pump stations. It is not the function of the Tribunal to assess the job size of the claimants or effectively to provide a further appeal in the rank to role process. However the Tribunal would observe that the claimants’ grievances are still extant and it would appear that in order to address this it will be incumbent on the respondent carry out an assessment of the job sizes of Watch Commanders of multi-pump and single pump stations. The Tribunal noted that Mr Ferrity during the cross examination of Watch Commander Cunningham put to him that one possible outcome of the grievance process could be that it is determined that Watch Commanders of Multi pump stations have been wrongly assimilated to the A rate.

6. As the Tribunal has not made a finding that there has been an unlawful deduction from wages it does not have to go on to consider the issue as to whether there has been a failure to comply with the statutory grievance procedures and, if so, whether there should be an uplift of compensation pursuant to Article 17 of the Employment (Northern Ireland) Order 2003.

The claimants’ claims under Article 45 of the 1996 Order as amended are therefore dismissed.

Chairman:

Date and place of hearing: 29 June -3July 2009, Belfast

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions