ADJ-00003339

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00003339

Dispute for Resolution:  

Date of Adjudication Hearing: 07/12/2016

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the referral by an employee of a complaint and/or trade dispute under Section 13 of the Industrial Relations Act of 1969 (or otherwise), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing and/or made available in advance of the hearing 

The Complainant herein has brought a complaint (by way of a Workplace Relations Complaint Form dated the 27^th May 2016) pursuant to his legal entitlements under the Industrial Relations Act of 1969. 

Complainant’s Submission and Presentation: 

The Complainant is a Medical General Practitioner who was engaged in a four year G.P training programme the last two years of which saw him obliged to work as a G.P. Registrar in two separate G.P practices in the North side Dublin for a year apiece.

The Complainant signed the appropriate Contract of Employment for Non-Consultant Hospital Doctors in and around July of 2014. This is a lengthy and comprehensive document which sets out the terms and conditions of employment with the medical service provider - the Respondent herein. The Complainant says that there was no supplemental or additional documentation provided at the time of the signing of this Contract.

Section 16 of the Contract relates to the Allowances and Payments and the subsection (a) thereof can be broken down into three separate parts:

An allowance of €10,857 in respect of out of hours work

A payment of o €3,089 per annum in respect of travelling expenses incurred while attending patients

And

An entitlement to travelling expenses in respect of attendance at training

It was in respect of the second item – the €3,089.00 payment that a dispute subsequently arose. The Complainant had interpreted both the €10,857 and €3,089 figures as representing “allowances” to which he automatically became entitled and which would be reflected in his fortnightly pay slip. The Complainant was correct in making this assumption as far as the larger sum was concerned and this Allowance did appear on his fortnightly pay slip.

When the Complainant made enquiries regarding the second payment (for the smaller sum of €3,089.00) he was advised that this sum was only paid up to a maximum and where expenses were vouched. It was further intimated that this understanding of the application of this allowance/expense had been universally circulated by letter dated the 28^th of September 2010- some four years before the Complainant had entered into this Contract of Employment.

The Complainant only learned about this need to supply vouching in and around March 2015 some 8 months after the commencement of the Contract of Employment and long after he had made certain financial decisions based on his need to have a second car in the context of having a wife and family.

Respondent’s Submission and Presentation: 

The Respondent had made provision for comprehensive written submission to be provided on the morning of the hearing. Whilst no appearance was made on behalf of the Respondent, the submissions were considered at length. It is noted in particular that there is no denial that the Complainant entered into the Contract without being made aware that a 2010 circular should also be read in conjunction with the Terms and Conditions of the Contract that that he was given.

The Respondent has also placed the onus back onto the Complainant to establish that he has actually incurred out of pocket expense when conducting home visits. Presumably this would be done by way of providing vouching documentation. The Submissions have also gone so far as to suggest that the Doctor does not have a great many such visits to patients’ homes. This possibly goes to the heart of the difference between an allowance and an expense. On the one hand an Allowance is paid in recognition of an inconvenience, on the other hand expenses are paid in the amount it has cost an individual to perform some aspect of the Contract of Employment.

The submissions were in many ways telling and demonstrated some lack of regard for the work of the Complainant. The idea, for example, that a Doctor could turn up to home visits by using a taxi service and then be expected to loiter on the footpath outside the home visit waiting for another taxi to come and pick him up is not a satisfactory proposition and really not worthy of any further remark.

Decision: 

There is a legal onus on Contracting parties to provide clear and unambiguous terms and conditions. It is not acceptable that a Contracting party would be expected to be on some sort of general notice that additional matters (as yet undisclosed) may well form a part of the Contract. This creates too much uncertainty and is fraught. It is contrary to any acceptable principles of Contract Law.

The initial interpretation given by the Complainant to the payment of the €3,809 seems on the face of it to be correct and I accept that he believed that this was an allowance which would be paid to him as part of his remuneration.

Whilst it is accepted that payments of allowances and expenses are always capable of being reviewed and the fact of the existence of the 2010 circular is in no way denied, there is an onus on the Employer to ensure that this understanding is part and parcel of the terms and conditions of the Contract. In fact, it seems incomprehensible to this Adjudicator that a Contract signed in 2014 has not been updated so as to clarify what is now expected (regarding expenses and allowances) and has been since 2010.

In the circumstances, the Respondent must therefore accept that the Complainant could reasonably be expected to have acted on the ordinary meaning of the words as they appear in the Contract of Employment. The Complainant has in fact established that he has acted to his financial detriment in reliance on this sum of money being payable.

I find there is merit in the case being made and recommend that the Complainant in these unusual and singular circumstances be paid the sum of €5,000.00 compensation. 

Dated:               24 May 2017