Case Number: ADJ-00028221. Workplace Relations Commission

• Judgment Date: 01 July 2021
• Court: Workplace Relations Commission
• Docket Number: ADJ-00028221
• Respondent: Dept Of Defence

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028221

Parties:

	Complainant	Respondent
Parties	Thomas Hickey	Dept Of Defence

Representatives Jason Murray BL. Peter Leonard BL instructed by Jennifer Murray , Employment Law Section, CSSO.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00036103-001	11/05/2020

Date of Adjudication Hearing: 16/04/2021

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

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

Background:

The Complainant is a former member of the Permanent Defence Forces and for the final one year of his service was employed as an Air Traffic Controller with the Air Corp.

Summary of Complainant’s Case:

Upon the completion of an Aerodrome Air Traffic Controller's course and promotion to the rank of Corporal on 15/11/2018, the Complainant was posted to 505 Squadron and began operational shifts as an Air Traffic Controller at Casement Aerodrome, Baldonnel. This position attracts extra allowances, namely technical pay and flying pay. The Complainant was paid his Corporal Pay (his basic salary), his Technical Pay but not his Flying Pay. This deduction in his wages amounted to €43.54 per week, which amounted to an estimated €2,177 during his tenure as an Air Traffic Controller. Numerous efforts were made by the PDFORRA representative to secure his underpayment and/or deduction in wages. Since leaving the Defence Forces the Complainant has also followed up by writing to the necessary personnel and the deduction and/or underpayment is still outstanding. The last date of payment received by the Complainant from the Defence Forces was the 15/01/2020. During the hearing of the complaint the rep from PDFORRA verbally outlined that the Complainant was not receiving his flying allowance although he was carrying out all the functions of an Air Traffic Controller.

Summary of Respondent’s Case:

Background The Complainant is a former member of the Air Corps, who served in 505 Squadron, 5 Support Wing up to his discharge, in or around 15 November 2019. The Complainant had previously served as a private within the Permanent Defence Forces. However, on 29th August 2018, following a two-year training course in air traffic control, he received his Air Traffic Control Tower endorsement qualification. As a result, he applied for a transfer from the Army to the Air Corps. This transfer took place on 14 November 2018 and the Complainant was promoted to the rank of Corporal on 15 November 2018. It is the case that the Complainant had not at that point, completed the Non-Commissioned Officer (“NCO”) training which is normally required in order to be appointed to the rank of Corporal. However, as the Complainant had successfully completed his Air Traffic Control training, the Chief of Staff agreed to waive the NCO training requirement and appointed him to the rank of Corporal. However, due to the structure of the Air Corps - and the structure that applies generally in the Permanent Defence Forces - at the time the Complainant transferred to Air Traffic Control, the two existing Corporal positions were already filled by serving Corporals, who though serving as acting Sergeants, were awaiting promotion to the rank of Sergeant on a permanent basis. Accordingly, at that point in time there was not a vacant Corporal position in Squadron 505 available to the Complainant. However, in acknowledgement of the Complainant’s status as a newly promoted Corporal, and to ensure that he was able to avail of his technical grade while working in Air Traffic Control, the Complainant was assigned to a vacant Corporal position in No. 3 SP wing. This arrangement was entered into on a temporary basis on the understanding that the Complainant would transfer over to Squadron 505 once one of the Corporal positions therein became available. This arrangement was fully explained to the Complainant by his Commanding Officer who also explained to the Complainant that until he was assigned to one of the serving Corporal positions in Squadron 505, he would not be entitled to avail of the flying allowance which attaches to Air Traffic Control personnel within Squadron 505. As a result, she assured him that he would not be required to fly at any time, or engage in flying duties generally, while he was temporarily assigned to No. 3 SP Wing. It is strongly the Respondent’s position that the Complainant fully understood this arrangement and clearly accepted it. It is further submitted that the Complainant would have been fully aware that such arrangements have been traditionally applied within the Permanent Defence Forces, in circumstances where ranks must be vacated in order for new recruits to be appointed to those ranking positions. Flying Pay. In accordance with Defence Force Regulations S.3 “Pay and Allowances” Flying Pay is set out as follows at Section 19: “A non-commissioned officer or private filling a vacancy in the establishment of the Air Corps or Air Support Company, Communications and...