EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
TE16/2015
PW16/2015
APPEAL(S) OF:
Royal Victoria Eye And Ear Hospital
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Marie Tighe
- Respondent
under
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr T. O'Grady
Mr T. Brady
heard this appeal at Dublin on 13th May 2016
Representation:
Appellant: Mr. Peter Flood, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Respondent: Ms Sile O'Donnell, 11 Coolatree Close, Beaumont, Dublin 9
This case came before the Tribunal by way of the appellant (employer) appealing against the decision and recommendation respectively of the Rights Commissioner ref. r-144924-pw-14/RG and ref. r-1144925-te-14/RG.
The decision of the Tribunal was as follows:-
Background:
The respondent (employee) was employed with the appellant hospital since the 2nd December 2002 and was seconded to the National Diabetes Programme, Clinical Strategy and Programme Directorate with the HSE. The respondent referred a complaint to the Rights Commissioners on the 14th May 2014 alleging the appellant had breach the Payment of Wages Act, 1991 in relation to an unlawful deduction from her wages effective from the 1st July 2013.
The Rights Commissioner found in the respondent’s favour ordering the appellant employer to pay her the following – “€4166.65 (€833.33 x 5 months from January to May 2014) subject to any lawful deductions, within six weeks of the date of this decision.”
The respondent also referred a claim to the Rights Commissioner under the Terms of Employment (Information) Act, 1994 to 2012 alleging the appellant employer had breached the Act in that she had not been notified of a change in her terms and conditions of employment in contravention of Section 5 of the Act.
The Rights Commissioner found in the respondent’s complaint was well founded and ordered the appellant company to pay the respondent the sum of €1,000. Within six weeks of the date of the recommendation.
The appellant appealed the Rights Commissioner’s decision and recommendation under the aforementioned Acts to the Employment Appeals Tribunal.
Determination:
The respondent was employed by the respondent from 2002 as director of nursing. For a period in 2010 she was acting Chief Executive. She applied for the full-time CEO position but was unsuccessful. She was instead offered the position of deputy CEO. This post was newly-created and was offered to her in addition to her role as Director of Nursing. She accepted this role and was paid an additional €10,000 per annum as a result. In 2013 she was seconded to the HSE to head up a national programme. The arrangement was that during this time the respondent would continue to pay her salary and would subsequently reclaim the money from the HSE. In the course of her secondment she noticed that the appellant was no longer paying her the portion of her remuneration applicable to the deputy CEO role. This resulted in a claim being brought to the Labour Relations Commission and a finding being made in the respondent’s favour in respect of claims under the Payment of Wages Act, 1991 and the Terms of Employment (Information) Acts, 1994 to 2012. The appellant has appealed both findings to the Tribunal.
The respondent told the Tribunal that before her secondment she had been told by the HSE that her existing terms and conditions would continue to apply. That this was made clear in the HSE’s Secondment Policy and Procedure where it states at paragraph 6.1 that:
“Seconded staff are entitled to maintain their terms and conditions of employment except where mutually agreed otherwise.”
It was clear from the evidence adduced on behalf of both parties that there had been no mutually agreed variation to the claimant’s remuneration.
The essence of the question that the Tribunal must decide is whether the €10,000 payment relating to the deputy CEO constituted part of the respondent’s wages within the meaning of the Payment of Wages Act. If it did so constitute, then the Tribunal must determine whether it was deducted unlawfully.
The respondent was formally offered the role of deputy CEO by letter dated 9th May 2011 and sent by DD, the chief executive. That letter stated:
“Further to our discussions I wish to formally offer you the position of Deputy CEO. As discussed, in addition to your role as Director of Nursing you will take on the following additional responsibilities:
Provide cover for the CEO as and when requested;
Assume responsibility for the Hospital’s Risk Management function;
Assume responsibility for the Hospital’s Quality Management Function.
An additional allowance of €10,000 will be paid for this role.”
This payment was described on her payslips as relating to an “acting allowance”. There was no suggestion from the appellant that this was only an acting position.
A formal secondment arrangement was entered into and committed to writing. This document was signed on behalf of the HSE, by the appellant’s chief executive and by the respondent. That document described the respondent’s role as “D/CEO and Director of Nursing”. It is noteworthy that it did not describe the respondent as an acting deputy CEO. It is also of some significance that her role was described as both deputy CEO and director of nursing. The chief executive was subsequently asked to write to the HSE with details of the respondent’s salary. He did so but only gave details of her salary as it related to the role of director of nursing.
It was the evidence of the appellant’s Chief Executive that the payment of €10,000 was very much linked to the respondent’s assumption of the risk management function. When he wrote to the HSE with details of her salary he did not include because it related to that function. He said that in his mind she was transferring as Director of Nursing only. When the respondent came to discuss the non-payment of this money with him in October 2013, he explained that the payment of the money related to the delivery of her risk management duties on site and that the function could not be performed if she was not onsite. However, it could presumably equally be said that the balance of her salary from the appellant related to the performance of her function as Director of Nursing and she was not delivering that either. The secondment agreement clearly stated that she was being seconded on the basis of both roles.
It was also part of the appellant’s case that the HSE’s secondment policy provided, also at paragraph 6.1, as follows:
“Enhanced salary payments such as unsocial hours payments will only be paid if applicable to the hours worked in accordance with current terms and conditions.”
It was suggested that the deputy CEO payment was an enhanced salary payment and that, according to the HSE policy she was not entitled to it. The respondent replied that she would have rather stayed where she was if moving was going to lead to a reduction in pay. The Tribunal is satisfied that this was not an enhanced salary payment as contemplated by the policy. The policy gives an example of the type of payment that is encompassed by paragraph 6.1. The payment in this case was a specific permanent contribution to her salary for having taken on an additional role with additional responsibility. Further, the Tribunal is satisfied that the description of the payment as an acting allowance was no more than an administrative convenience in finding some mechanism to make the payment. As noted above, there was no question that the respondent was acting in the role and nor was there any question that the payment was a temporary one.
The appellant also submitted that in making the payment it was not in line with Department of Health pay guidelines and that there had never been any Department of Health sanction for the payment. Notwithstanding that, the payment had been made from May 2011 until effectively the end of 2013. There was no suggestion that the payment would be stopped for those reasons when she remained in the direct employment of the respondent. Further, it was not the respondent’s evidence that the HSE was not told of the payment because of this non-compliance but rather the HSE was not told because it was the appellant’s view that the respondent was being seconded only as director of nursing. The Tribunal accepts that the secondment agreement makes clear that she was being seconded as Director of Nursing and deputy CEO and that this agreement was signed in those terms by the respondent’s Chief Executive.
The Tribunal is satisfied that the deputy CEO payment formed part of the respondent’s wages within the meaning of s.1(1) of the Payment of Wages Act, 1991. Further, the Tribunal is satisfied that it was a deduction, within the meaning of s.5 of the same Act, in those wages. There was no evidence that the deduction was on required or authorised by statute. There was no evidence that the deduction was one required or authorised by her contract of employment. There was no evidence that the respondent had given her prior consent in writing, or indeed at all, to the deduction.
Nor was there any evidence that, when the respondent’s pay was reduced, she was informed in writing of this change to her terms of employment.
In respect of the appeal from the recommendation of the Rights Commissioner under the Terms of Employment Act, 1994, the Tribunal finds that the respondent was not notified in writing of the change to her terms of employment. We therefore affirm the recommendation of the Rights Commissioner and order that the appellant pay to the respondent the sum of €1,000.00.
In respect of the appeal from the recommendation of the Rights Commissioner under the Payment of Wages Act, 1991, the Tribunal finds that the respondent’s wages were deducted otherwise than in accordance with the Act. In the six-month period before the lodging of her claim, the respondent was not paid the deputy CEO portion of her pay for the months of January to May inclusive. We therefore affirm the recommendation of the Rights Commissioner and order that the appellant pay to the respondent the sum of €4,166.65.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)