Complainant

Respondent

Anonymised Parties

A Pharmacist

A Health Service Provider

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-00006950-001

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00006950-002

05/09/2016

The parties herein came before the adjudication services on two separate dates including the 26th of January 2017 and the 3rd of May 2017. On the earlier of the two dates the Complainant was invited to prepare submissions with respect to the deductions he said were being unlawfully made from his remuneration and which specifically related to his annual leave entitlements.

It is to the credit of the parties herein that in the intervening period between the January 2017 date and the May 2017 date the parties did have talks with view to narrowing the issues. These talks have had some benefit.

NOTE : The Complainant herein had requested that his claim be heard alongside that of his colleague who brings a similar claim particularised in ADJ 4867, and in the course of the hearing the two Complainants supported one another and their evidence was largely interchangeable and I have come to the within decision based on their combined submissions.

The Complainant had become increasingly frustrated at what he perceived to be incorrect calculations being made with respect to his annual leave entitlements. There can be no doubt that the Complainant felt obliged to bring this matter to the WRC, in circumstances where no one person having the payrole function was helping the Complainant to understand the manner in which annual leave entitlements were being calculated.

The Complainant is employed by a publically funded agency which deals primarily with providing addiction services. Between part time and full time employees he is one of about ten employees in this highly specialised position. From time to time, the Complainant is obliged to work in an alternative area which stretches out into mid-Leinster.   There, he works alongside other employees engaged in the same capacity but whose annual leave payments were being calculated at a different way and rate to his own.

In his analysis, the work is comparable and the employer was believed by the Complainant to be one and the same and it was in these circumstances that the Complainant believed that his employer was making unlawful deductions.   This was the substance of the complaint being made under the Payment of Wages Legislation.

The Respondent accepts that there is a disparity in pay as between the Complainant and his comparators in what is in fact a separate region wherein he was expected to work from time to time. The Respondent put forward the proposition that the paymaster in the Complainant’s place of work was applying the appropriate rate of pay and that the proposed comparator was being paid incorrectly and that it was the intention of the Health Service to regularise this difference – though a timetable for any such regularisation was not made known at the hearing.

The Respondent has conceded that the disparity in pay was very frustrating for the Complainant in a workplace that should be seen to be applying equal pay for equal work.

The Respondent has clarified with the Complainant (and the Complainant appears to accept the principle) that the Complainant is absolutely entitled to annual leave based on a rate of 8% of every hour actually worked. The Complainant is a full time employee working anywhere up to 40 hours a week and sometimes more. The Respondent accepts that in making the calculation it is obliged to include those hours wherein the Complainant is expected to be available on the telephone although he/she may not be physically in the workplace. The Complainant was satisfied with this acknowledgement.

The Respondent explained that the calculation of the number of hours of holiday is calculated on the basis of 8% of the number of hours actually worked. This is a reasonably straightforward calculation. The Respondent further explained that once the number of annual holiday hours have been calculated, the Respondent will calculate the rate of pay for each such hour of annual leave based on the average pay taken in a thirteen week period prior to the calculation. This allows the employee some benefit for having worked premium hours which attract a greater rate of pay than normal working hours.

The Respondent rejected the proposition that the Complainant would be allowed to include premium hours worked as anything other than the actual hours work.

So in particular, the issue of Sunday working came into particular focus. The Complainant works many Sundays, and the Sunday shift might last three or four hours. The Complainant is paid at a premium rate of double time. For the purpose of calculating annual leave the Sunday shift can only be included at the rate of actual hours worked (either three or four hours in the evidence I heard) and cannot be calculated at the rate of how they are paid (i.e. six or eight hours per the example I was given).

This is a sensible proposition and I would accept the principle that there cannot be a double windfall in relation to the Sunday shift. However, it seems that those colleagues in the other areas as averred to above are in fact getting paid so as to include these extra hours not actually worked (though paid for by way of premium payment).

I have carefully considered the evidence I have heard in relation to the within Payment of Wages claim. The employer is in the invidious position wherein it is presiding over a situation wherein two groups of people are being paid at different rates for seemingly no good reason. To some extent this hearing had the hallmarks of attempting to clarify an Industrial Relations dispute.

In principle the Complainant accepts that the annual rate of pay being calculated at 8% of every hour actually worked is correct and the employer will rectify all losses calculated on this basis backdated to October 2015. I found the evidence of AW (on behalf of the Respondent) to be particularly compelling in this regard and I anticipate that she will calculate in an honest and appropriate way. The rate of pay is as outlined above using the previous thirteen week average.

It is noted that the Employer herein has indicated a willingness to ensure that the Complainant will be at no financial loss in respect of the hours of employment he has lost by reason of having to be in the WRC in respect of this claim. This was a particularly complicated matter requiring two days of hearing.