FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE DUBLIN MID-WEST - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Recommendation r-135929-ir-13/JT.
BACKGROUND:
2. The Claimant is employed as a Public Health Nurse in the Dublin South West/Kildare West Wicklow area. In 2007 an agreement was reached between the HSE and the Unions to reduce the working hours of Nurses/Midwives to 37.5 hours from the 1stJune 2008. The Claimant worked 20 hours a week in a stand-alone centre and was unaware that the HSE had sent a circular to employees of the revised hours. The Claimant continued to work 20 hours a week and in May 2010 she was informed she was only being paid for 19.23/19.14 hours. She wrote to her Manager and was left in no doubt she would be paid for the extra hours worked.
- The Employer said the Director of Public Health Nursing instructed the Claimant to reduce her hours and made a request for Management to consider she be paid for the additional hours worked. The Operations Manager responded on the 28thNovember 2012 to advise that in line with current policy no financial reimbursement is made and the additional hours be given as time off in lieu.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 9th December 2013 the Rights Commissioner issued the following Recommendation:-
- I have considered the submissions of the parties. It is difficult to apprehend that the Claimant did not notice a reduction when she received her payslip. However, I accept the argument made by the Respondent that they are prevented from entertaining this claim by virtue of Financial Emergency Measures in the Public Interest (No. 2) Act 2009. I recommend that the Claimant accept that offer of time off in lieu.
On the 2nd January 2014 the Claimant appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th February 2014.
WORKER’S ARGUMENTS:
3. 1. There was never a change to the Claimant’s payslip. The Rights Commissioner has erred in this part of the Recommendation.
2. The Claimant raised this matter in 2010 and has given her management team every opportunity to address this issue.
3. There is no practice that the IMNO are aware of whereby an employee can receive time off in lieu for underpayments of salary.
EMPLOYER’S ARGUMENTS:
4. 1. The National Financial Regulations (NFR04) sets out the official procedures for dealing with underpayments to staff.
2. The Claimant was not underpaid but she worked additional hours from 1st June 2008 to June 2012.
3. The Claimant is being given time off in lieu in recognition of the fact she worked the additional time.
DECISION:
In the course of the appeal it was agreed that the Claimant’s pay slip did not disclose any information from which the error would have been apparent. It was also accepted that the provisions of the Financial Emergency Measures in the Public Service (No.2) Act 2009 does not preclude concession of the claim.
The Court accepts that the normal practice in the HSE is that payment is made in respect of overtime except where an arrangement for time off in lieu is agreed between the employee concerned and his or her manager. It is not disputed that the Claimant worked additional time over and above her adjusted contract hours. The resulting additional time should be treated as analogous to overtime. In the absence of agreement by the Claimant to accept time in lieu she should be paid for the time in question.
It is noted that the value of the additional hours worked was calculated by the HSE as €2,812.65 and the Union did not take issue with that amount.
It is also noted that while the Claimant sought an adjustment in her annual leave to reflect the additional hours worked this aspect of her claim does not arise.
It is the decision of the Court that the Claimant should be paid the sum of €2,812.65 in respect of the additional time worked in full and final settlement of her claim.
The Union’s appeal is allowed and the Rights Commissioner’s Recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
20th February, 2014.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.