ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001627

Complaint for Resolution:  

Date of Adjudication Hearing: 1st July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On 28^th January 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Payment of Wages Act. The complainant is a pharmacist and the respondent is the public health provider. In this report, I have referred to the complainant as a “specialist pharmacist”. While the parties used another appellation for the role, I have not used this term as it and the details contained in the report may leave the complainant to be identifiable. Adjudications under the Workplace Relations Act take place otherwise than in public.

The complaint was scheduled for adjudication on the 1^st July 2016. The complainant was in attendance and was accompanied by a colleague. Representatives from the respondent’s HR department were in attendance as were representatives of the area in which the complainant works.

In accordance with Section 41(4) 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.

Attendance at the Hearing: 

Complainant’s Submission and Presentation:

The complainant has worked as a specialist pharmacist for the respondent since 2006. The service operates every day of the week and the complainant works Mondays to Fridays and certain weekends, by agreement. She works in a named facility and claims, and is paid, 8.5 hours for each day worked. She outlines that since she availed of parental leave following the birth of her second child, the respondent has wrongly sought to impose particular contractual conditions on her and she has been subjected to unlawful deductions in pay. She brings this claim pursuant to the Payment of Wages Act.

The complainant provides the historical background of the service and to the post of ‘specialist pharmacist’. It was a service that expanded quickly due to particular public health crises and while a trade union and the respondent had agreed a structure for the role, this was never implemented by the respondent (more accurately, a predecessor). In 2013, the complainant says that she rejected a contract sent to her by the respondent

The complainant outlines that she was paid less than she was due during a period of maternity leave between the 7^th December 2015 and the 7^th June 2016. She also asserts that she has accrued fewer entitlements over the course of parental leave than she had been expecting. The complainant outlines that she is not subject to a 37 hour per week contract and the respondent is misapplying the contractual hours of another named pharmacist role within the respondent. She refers to the parental leave she took in advance of the 7^th December 2015.She states 133.2 hours of pay were deducted from her over a period of eight weeks. While this was eventually repaid to her, it caused stress to her, especially as it appeared that the respondent was trying to impose a 7.4 hour day on her.

The complainant outlines that during her first two maternity leaves, she was paid 59 and 49 hours per week respectively. This was calculated according to the hours worked and claimed in the 13 weeks preceding each maternity leave. Prior to her third maternity leave, the complainant availed, with the agreement of her line manager, to two days of parental leave each week. She states that without taking account of this parental leave, her hours in the preceding 13 weeks would have been 48.3 hours per week, on a par with her previous periods of protected leave. The respondent, however, had paid her 37 hours per week during this third period of maternity leave, leading to a loss of hours of 293.8 hours. Furthermore, the time spent on parental leave should have been included in the calculation of her public holiday pay, leading to a shortfall of 64.5 hours.

The complainant concludes her submissions by stating the respondent has not treated her in accordance with her contract of employment in calculating her maternity leave pay and public holiday pay. This has led to unlawful deductions from her pay, in particular that she is entitled to an additional 358.3 hours of pay, made up of 293.8 hours during maternity leave and 64.5 hours as public holiday pay. She states that her hourly rate of €39.52 per hour, so she is entitled to redress of €14,160 gross.

At the adjudication, the complainant referred to her detailed submission and appendices and outlined that these difficulties stemmed from the unique nature and historical origin of the specialist pharmacist role. They were now assigned in a payroll group with other health professionals who work a 37 hour week. She outlined that her maternity pay in two previous maternity leaves had been calculated with reference to the 13 weeks she had worked prior to going on maternity leave. This was not the basis of the calculation of the third period of maternity leave, which commenced on the 7^th December 2015. She had incurred a shortfall in pay of 293.8 hours during the course of her maternity leave.

The complainant outlined that it was standard practice for her and her colleagues to submit claim forms for hours worked over the preceding fortnight every two weeks. Referring to the claim form lodged on the 20^th July 2015, this claimed 63.5 hours worked and five days of parental leave. How parental leave was treated would determine the calculation of annual leave and public holiday pay. The respondent had offered a 7.4 hour day for a parental leave day, but 8.5 hours was the standard day of her role and of a specialist pharmacist. She also said that because annual leave is based on the actual number of hours worked, she accrued less annual leave because of the parental leave days she had taken. She also lost out on public holiday pay for each parental leave day taken. She stated that the respondent permits the inclusion of hours taken as parental leave in the calculation of public holiday pay, but she was being shoehorned into a 7.4 hour day. She said that she had refused to mark down on claim forms that a parental leave day equated to 7.4 hours, as requested by the respondent. She said that her maternity pay had been calculated in the same way, leading to a further shortfall in hours due to her.

The complainant acknowledged that the pay issue had been resolved when back pay was paid to her on the 21^st January 2016. This related to eight weeks where she had been underpaid. The complainant did not accept that her normal working week was 37 hours per week as she and her colleagues had not signed a contract of employment accepting this. She stated that she had worked an average of 48 hours per week and this should have been used to calculate her entitlement to maternity leave pay. In reply to the respondent, it was submitted that the Haddington Road Agreement was about increasing contracted hours to 37 hours for certain categories of staff, as opposed to permitting a reduction in the hours of specialist pharmacists. It was further submitted that any loss of pay, for example occurring in the period of maternity leave, was an unlawful deduction. The complainant did not accept that the respondent was entitled to rely on the 2013 contract as this had not been agreed. It was submitted that their agreed contract provided for a 48-hour week, based on the Organisation of Working Time Act, but her actual hours worked were higher. The loss of pay amounted to deductions within the scope of the Payment of Wages Act.

Respondent’s Submission and Presentation:

The respondent outlines that the complainant is engaged as a specialist pharmacist and this category of health professional initially worked under a contract for service, and deemed to be independent contractors. It states that there had been negotiations between the respondent and the trade union representing this category of pharmacist, but those discussions were never concluded. In respect of the complainant, the respondent states that she was issued with a contract of indefinite duration on the 16^th May 2013 and that she is subject to the Haddington Road Agreement, which provides that as of the 1^st July 2015 this category of employee has a working week of 37 hours and a stated salary. It states that it paid the complainant maternity pay on the basis of the 37 hour week and that she was paid public holiday pay in this time. Her pay was reduced for days of parental leave taken in accordance with the complainant having a 37 hour week. The respondent concludes its submissions by referring to wider industrial relations negotiations and the need to leave space for their progress. It also states that there has been no breach of the Payment of Wages Act.

At the adjudication, the respondent outlined that the matters claimed by the complainant related to a reduction in pay as opposed to a deduction. In respect of the specialist pharmacist role, they had originally been independent contractors and paid a part-time rate of €39.52 per hour. Contracts of employment for this category had not been agreed with the trade union. The respondent outlined that a contract of employment had been issued to the complainant in January 2013, providing a 39-hour week. All leave was calculated on this basis.

In respect of this complaint, the respondent acknowledged that there was a liability due to her for public holiday pay. The respondent also acknowledged that the complainant worked in excess of the hours of a general week in the sample week of the 20^th July 2015. In respect of the two previous maternity leaves, the total number of hours worked by the complainant should not have been taken into account in establishing the rate of pay.

The respondent said that as a matter of principle across the organisation the pay for any leave taken could not exceed the set hours for the role. In this case, the normal week was 37 hours. The specialist pharmacist role is allocated 37 hours per week, as determined by the respondent. It was not possible for leave to include hours worked above and beyond such set hours as they fell outside the normal working week. It stated that the adjustment made on the 21^st January 2016 reflected the complainant’s normal working week as 37 hours per week. In this case, the complainant’s pay during the third maternity leave was based on the 2013 document and the working week of the 37 hours. As such, this amounts to a reduction in pay and not a deduction. This claim did not fall within the ambit of an unlawful deduction provided by the Payment of Wages Act. It was submitted that all benefits were based on contracted hours. It was acknowledged that the public holiday pay issue amounts to a deduction and the respondent undertook to pay the amount due. In respect of maternity pay, the respondent referred to the anomalous situation of the specialist pharmacist and in such circumstances, the norms should apply.

Findings and reasoning:

The complainant has referred one complaint pursuant to the Payment of Wages Act. There are two elements to the complaint, one related to public holiday pay and a second related to maternity pay. At the adjudication, the respondent acknowledged that it had miscalculated the complainant’s entitlement to public holiday pay. I, however, make a finding in the complainant’s favour, which she can pursue if this is necessary. The complainant’s claim was for 64.5 hours of public holiday pay, payable at €39.52 per hour. Accordingly, I award the complainant redress of €2,549.

The issue left to be determined is the complainant’s rate of pay during the period of maternity leave of the 7^th December 2015 to the 7^th June 2016. The complainant claims a shortfall of 293.8 hours during the course of this maternity leave. The complainant refers to how her maternity pay was calculated for her first two maternity leaves and says that the pay for her third period of leave should have been calculated according to the preceding 13 weeks she had worked for the respondent. The respondent denies the claim and states that it is entitled to pay maternity pay at the 37 hour week set for the role.

Section 1 of the Payment of Wages Act provides the following definition of wages: “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise…” The definition specifically includes the payment of maternity pay where payable under an employee’s contract. It is not in dispute that the complainant is contractually entitled to maternity pay. It follows that any loss of maternity pay is a “deduction” within the scope of the Payment of Wages Act and it falls on the employer to show the lawfulness of the deduction. Again, given that maternity pay falls within the definition of wages, I do not see how it can be a “reduction” or otherwise outside of the ambit of the Payment of Wages Act.

Section 5 of the Payment of Wages Act provides as follows in relation to deductions:

“5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

...

(6) 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), or (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.”

Section 5 of the Payment of Wages Act provides three ways a deduction in pay can be lawful, i.e. by way of statute, contract or consent. The complainant has clearly not consented to any loss. The respondent did not point to a statutory provision to justify its stance in relation to the complainant’s third maternity leave; it referred to the 2013 contract, the Haddington Road Agreement and a practice that maternity pay would not be paid beyond set hours.

The complainant did not agree to the 2013 contract. It is signed on behalf of the employer but not by her. The complainant had acquired her entitlement to a contract of indefinite duration by operation of the law. During her two previous periods of maternity leave, her entitlement to maternity pay had been established with regard to hours worked over a certain period prior to the taking of the leave. She asks that the same formula be applied to the maternity pay for the 2015/16 period of leave. Given the absence of any statutory or contractual justification for a changed approach, it follows that the complainant is entitled to be treated as she had been previously. I appreciate that the post of specialist pharmacist is without many equivalents in the respondent. The complainant and her colleagues, however, are entitled to refer to their contractual entitlements. In this case, the complainant can rely on her contractual entitlement to calculate maternity pay according to the hours she worked in the 13 weeks before taking the leave. There is no statutory or contractual provision the respondent can rely on to justify a different position or to impose a maximum of ‘set hours’. It follows that the complaint is well-founded and the complainant is entitled to redress for the shortfall in hours. It is not disputed that she was not paid for 293.8 hours. Given that the complainant’s hourly rate of pay is €39.52 per hour, the total owed in this regard by the respondent to the complainant is €11,610.

Decision:

Section 41(4) 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.

CA-00002232-001

The complaint pursuant to the Payment of Wages Act is well founded and the respondent shall pay to the complainant redress of €14,159 in relation to public holiday pay and maternity pay. This award consists of remuneration.

Dated:   30^th November 2016