ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003262

Complaints for Resolution:

Date of Adjudication Hearing: 21st September 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 15^th April 2016 and the 6^th May 2016, the complainant lodged complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act. The complaints relate to the payment of sick pay and holiday pay. They were scheduled for adjudication on the 21^st September 2016. The complainant was in attendance and a representative of the respondent also attended. The complainant is a sessional pharmacist and the respondent is a provider of health services.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant is employed as a sessional pharmacist within the respondent addiction services. He has worked for the respondent since the 15^th March 2003. The complainant submitted two complaints heard at this adjudication. Both claims are made pursuant to the Payment of Wages Act.

In respect of the first complaint, the complainant said that he had been due to work the weekend of the 5^th and 6^th December 2015 but had not been able to do so due to illness. He took uncertified sick leave. This clinic is open at weekends between 9am and 11am and the sessional pharmacists claim pay for three hours for Saturdays and six hours for Sundays. The complainant claimed for these two days as sick pay, but he later noticed that he was deducted four hours of pay. This was different to previous periods of sick leave when all hours had been paid. There had been nothing in writing, for example a memorandum or circular, to change this practice. The email forwarded to the complainant on the 20^th September 2016 states that the complainant is due one additional hour, as four hours had been deducted in error. The complainant asserts that he is now entitled to recover three hours at the hourly rate of €39.50 per hour.

In respect of the second claim, the complainant is ordinarily based at a different clinic, where sessional pharmacists work claim four hours for work on Saturdays and Sundays, with a Sunday premium being paid for Sundays. He said that the terms and conditions of the role provided that the payment of annual leave would include all allowance, including for work on Saturday and Sundays. This was in line with the Organisation of Working Time Act. He referred to respondent documentation where it provided to make such payments. It had been practice that he would be paid 8% of what he had worked in the 13 weeks preceding a period of annual leave. The complainant outlined that there had been issues going back to 2009 where he was not paid all the hours he was due. He had obtained redress before a Rights Commissioner. While the respondent had acknowledged shortly before a November 2015 hearing that five hours were due to him, this had never been paid to him. The complainant outlined that it was open to this adjudication to go back three years. In July 2016, he had claimed for 86 hours, but had only been paid for 32 hours. He was owed a further 54 hours. He outlined that he incurred similar losses in 2015 and there were losses in previous years.

Respondent’s Submission and Presentation:

The respondent outlined that the complainant is a sessional pharmacist and is paid annual leave according to the total hours worked in service. In respect of the sick pay claim for the weekend of the 5^th and 6^th December 2015, it was submitted that the hours sought were a premium and the sick pay scheme did not incorporate such hours. While there was nothing in writing to say that premium payments were not incorporated into pay, it was practice that such hours were not included in sick leave. If it had happened in the past, it was a mistake. In respect of the holiday pay claim, the respondent referred to its calculation of the complainant’s entitlement at appendix 4 of its submission.

This appendix includes an email of the 1^st December 2015 from a respondent official where he addresses the entitlements of sessional pharmacists. It states that sessional pharmacists do not have a fixed weekly contract and that some are part-time or employed by more than one employer. Annual leave is paid on a pro rata 8% basis. It outlines that holiday pay should be calculated according to the number of hours worked in the 13 weeks prior to the taking of the annual leave and emphasises that this relates to hours “worked” and not “paid”. It gives an example of how an employee should obtain holiday pay where they have worked for six of the preceding 13 Sundays and details how the Sunday premium should be incorporated above and beyond basic pay. It concludes by stating that the employee is being compensated for annual leave hours accrued payable and it is necessary to discern what portion would be equivalent to a Sunday. This email was sent in connection with the November 2015 hearing.

The respondent then provides a breakdown of how the complainant’s holiday pay entitlement was calculated for the period of the 5^th July 2015 and the 3^rd January 2016. In this period, the complainant worked 914.5 hours, accruing pro rata annual leave entitlement of 73.16 hours. In this period, the complainant had worked 9 of 13 Sundays. It acknowledged that the complainant is entitled to an additional hour’s pay for each hour worked on a Sunday. The Sunday shift was four hours. It provides that Sunday hours should be incorporated into holiday pay on a pro rata basis, so that the number of hours paid is determined by the number of Sundays worked. The respondent calculates the total annual leave entitlement for this period as 79 hours.

Findings and reasoning:

The two claims before this adjudication are made pursuant to the Payment of Wages Act. They relate to sick pay and holiday pay arising out of the complainant’s contract of employment. The dispute relates to how additional pay accrued for Sunday work is reflected in sick pay and holiday pay.

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 both sick and holiday pay where payable under an employee’s contract.

It is in the nature of Payment of Wages claims that they address contraventions arising in the six months preceding the complaint, extendable, with reasonable cause, to 12 months. The fact that these are Payment of Wages claims is significant as it is not possible to consider leave accruing over the course of a whole leave year beyond this limitation period. It follows that I cannot accept the complainant’s submission that I can deal with leave entitlements in the current leave year and the two preceding leave years. As a Payment of Wages claim (and not a pay claim pursuant to the Organisation of Working Time Act), I can only address holiday pay entitlements in the six months preceding the lodgement of the claim (or up to 12 months, with reasonable cause).

In respect of sick pay, the complainant states that the Sunday hours are core hours and are not overtime. They should be incorporated into sick pay he is due. The respondent referred to the fact that additional Sunday pay should not be included in the calculation of sick pay and that it should not have been paid on this basis in the past. It is clear that in the absence of any contradictory document produced by the respondent, the complainant is entitled to recover the four hours of pay deducted from him in respect of the sick leave of the 5th and 6th December 2015. I acknowledge that the respondent undertook to pay one additional hour on the 16th September 2016 (in the pay-run immediately before this adjudication) and I therefore make an order for the three outstanding hours. The total due is €118.56.

In respect of holiday pay, the complainant quoted from page 10 of a respondent HR document as follows: “payment for annual leave includes any regular bonus or allowance normally paid to the employee, but it excludes overtime. Premiums currently included are Saturday, Sunday, night duty, twilight hours and public holidays". The respondent did not contradict this statement. It follows that the complainant is entitled to count Sunday premium hours in the calculation of his holiday pay entitlement.

In its submissions, the respondent addresses its calculation of holiday pay equivalent to 79 hours for the period of the 5th July 2015 to the 3rd January 2016. It says that this was the claim conceded in advance of the November 2015 adjudication. This is disputed by the complainant. The complainant states that the November 2015 hearing dealt with any earlier claim. He further says that he should have been paid an additional five hours for period of the 5th July 2015 to the 3rd January 2016 and has sought payment of this. At this adjudication, the complainant outlined that for the period of April to July 2016, he was paid 32 hours of holiday pay when he was due 86 hours. He says he is owed the difference, i.e. 54 hours.

This case is marked by the absence of paperwork. The only document I have from the respondent to explain its manner of calculating holiday pay is an internal email of the 1st December 2015. The respondent HR document referred to by the complainant was not supplied, although its contents were not disputed by the respondent. What is also absent is a transparent paper trial for an employee, such as the complainant, to avail of when seeking annual leave. There does not appear to be a document that sets out, as of the date the employee takes annual leave, how the respondent calculated the employee’s entitlement to holiday pay, which is, in turn, forwarded to the employee for their records. All I have are emails prepared by the respondent around the time of WRC hearings.

The absence of paperwork leads to an opaque system of determining holiday pay. It also leads to the same parties having to return to the WRC to fight out the same case again and again. It is notable that the parties to this adjudication attended a previous hearing on the 26th November 2015; they attended the within adjudication on the 21st September 2016 and are due to attend another adjudication in late January 2017. There will have been three hearings in 15 months to consider similar disputes between the same parties, although covering different time periods. Were this pattern to continue, every period of annual leave taken by a sessional pharmacist, including the complainant, may necessitate a WRC adjudication!

I have not seen any documentation related to the November 2015 proceedings, but according to an email from the complainant of the 18th December 2015, this related to the time period of the 1st January 2015 to the 30th June 2015. In the absence of anything contradictory from the respondent, I accept that this was the case. The respondent’s email of the 15th September 2016 addresses the period of the 5th July 2015 and the 3rd January 2016 and this is the claim that is before this adjudication. For the sake of clarity, I make no findings in relation to the period of April to July 2016 as this post-dated the May 2016 complaint, although it was mentioned by the complainant during the course of the adjudication.

In respect of the period of the 5th July 2015 and the 3rd January 2016, the complainant states that he was due 84 hours of holiday pay and only paid for 79 hours. The internal respondent email of the 15th September 2016 provides an explanation for the calculation of 79 hours. What is in dispute is the five hours. The hourly rate of pay is €39.50. The respondent provides information regarding the hours worked by the complainant in this period. It states that he worked 914.5 hours. It also states that the complainant worked on nine Sundays in the preceding 13 weeks. As noted above, the Sunday shift in the complainant’s ordinary place of work is a four-hour shift, for which the pharmacists are paid their hourly rate and receive a premium of an additional hour’s pay for each hour worked. While I have not seen rosters, pay claims or pay slips for this period, I take it that the 36 Sunday hours the complainant worked are included in the 914.5 hours recorded by the respondent. The question then is what happens to the 36 Sunday premium hours arising in this period. The complainant did not explain why he should be entitled to these additional five hours for this time period and I cannot establish a basis for this element of the claim. I mean this as no criticism of the complainant as the manner in which the respondent calculates, and communicates, his and his colleagues’ holiday pay entitlement is so opaque. I cannot, however, find that this element of the claim succeeds.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00003965-001

I find that the complaint pursuant to the Payment of Wages Act in respect of sick pay is well founded and the complainant shall be paid €118.56.

CA-00003965-002

I find that the complaint pursuant to the Payment of Wages Act in respect of holiday pay is not well founded.

Dated:   8 February 2017