EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Mohsin Moola PW211/2015
against the recommendation of the Rights Commissioner in the case of:
Irish Prison Service
under
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr D. Peakin
Ms M. Maher
heard this appeal at Dublin on 25th May 2016, 30th November 2016 and 31st January 2017
Representation:
Appellant:
Mr Thomas Smyth, Irish Medical Organisation, 10 Fitzwilliam Place, Dublin 2
Respondent:
Mr Neil Shannon, Irish Prison Service, Legal And Professional Standards Of, Phibsborough Office, 397e North Circular Road, Dublin 7
This case came before the Tribunal by way of an appeal by the employee against the decision of the Rights Commissioner Ref: r-145370-pw-14/MMG.
Background:
The appellant lodged the within claim in the first instance with the Rights Commissioner under the Payment of Wages Act, 1991. The basis of the claim was that on three separate dates, 9th May 2014, 30th May 2014 and 15th September 2014, the appellant alleges that the respondent made illegal deductions from his salary totalling €2,817.99. The deductions made on 9th May 2014 relate to the work period 2nd September 2013 to 6th September 2013. The deductions made on 30th May 2014 relate to the work period 23rd September 2013 to 27th September 2013. The deductions made on 15th September 2014 relate to the work period 28th April 2014 to 2nd May 2014.
It was the respondent’s contention that these were legitimate deductions based on the appellant having worked less than his contracted hours per week on certain given dates. In turn, the appellant contended that he is not bound by the contract to which the respondent refers. He had a verbal agreement in relation to his terms and conditions of employment which, inter alia, did not specify a required number of hours he was to attend per week.
Appellant’s case:
The appellant is a medical doctor who was initially engaged by the respondent as a locum in 2004. The appellant returned to his native South Africa at the end of 2006 however a position became available in Cloverhill Prison, a prison within the remit of the respondent, in late 2006.
The appellant stated that he had been contacted on a number of occasions by (LD), then Governor of Cloverhill Prison who asked the appellant to return to the respondent in this role. The appellant stated that he would not return unless the role was permanent as he was aware of the difficulties within Cloverhill Prison and the respondent’s ability to retain staff. He also sought other assurances in relation to his terms and conditions before committing to the role.
Discussions ensued between the parties and the appellant told the Tribunal that they verbally agreed terms and conditions of employment. Among other things they agreed that the appellant would be required to commit to two sessions per day from Monday to Friday in order to cover clinics from 09:30 to 12:00 and from 14:15 to 16:00 in the prison. These hours are relevant insofar as these are the only times medical staff have face to face time with prisoners. Further, in order for prisoners to attend with medical staff there needs to be prison officers available to accompany them and staff nurses available to assist the appellant. There was no agreement to working a 39 hour week. In addition, the appellant stated that his work with the respondent was predicated on his ability to operate as a GP in addition to his work in Cloverhill Prison. This was necessary in order to retain his skills which are applicable to the general population and not just inmates. Further, the appellant stated that he was on call regularly due to the nature of Cloverhill Prison, being a committal prison, with new prisoners arriving daily some of whom may have needed medical attention. It appears that because the appellant had no written terms and conditions and had various different allowances he was paid as a supplier to the respondent (albeit he was a permanent employee). The appellant commenced the role in early 2007.
The terms of the agreement to which the appellant refers were never put in writing despite the appellant having requested this. The appellant never signed any written contract of employment and he believes that he continued to operate under the terms of the verbal agreement without issue until about 2010. In 2010 a review of prison doctors contracts took place within the respondent organisation and attempts were made to conclude a new template contract with the Irish Medical Organisation (IMO). The appellant never signed the 2010 contract as he believed its terms did not conform with the terms and conditions he agreed originally in late 2006/early 2007. As a result the appellant considers himself to be unique within the system and believes he is entitled to a contract of indefinite duration on the basis of these terms and conditions. The appellant acknowledged that there was a template contract, negotiated with the IMO in 2004, in existence but does not agree that he was bound by the terms and conditions therein as he never signed it. Further, in 2006 he was of the opinion that he negotiated a separate verbal contract with representatives of the respondent and was therefore not bound, either expressly or impliedly, by the 2004 template contract.
It was only in 2010 that the respondent began to take issue with the fact that the appellant may not have been working in Cloverhill Prison for 39 hours per week. Various correspondence was entered in to between the appellant and respondent concerning his contract but no resolution was arrived at. Further the respondent continued to pay the appellant as a supplier up until 2012 at which stage, the appellant states, the respondent unilaterally decided to change the manner in which he was paid and moved him to a salary despite him not signing the 2010 contract. Further correspondence ensued between the parties in the same vein as before but no resolution was arrived at. As outlined above the issue of the 39 hour work week featured heavily in this correspondence. The appellant does not believe he is bound by any contract that requires him to be in Cloverhill Prison for 39 hours per week face time with inmates who need medical attention but rather he operates on the basis of the 2006/2007 terms and conditions he agreed locally with the Governor of the prison and operated on, uninterrupted for a number of years.
In relation to the three deductions detailed above it is the appellant’s position that the respondent had no grounds to deduct money from his wages on the basis of him not working 39 hours per week as hours per week never formed part of his agreed terms and conditions of employment. The appellant also took issue with the manner in which the deductions were calculated. The respondent introduced a ‘time recording’ system for all consultants attending prisons in that they were supposed to log their hours of attendance by clocking in every time they attended a prison. It appears from the evidence given that this is an outstanding issue with the IMO who issued an instruction to its members not to engage with this system. Despite this the hours logged were used to calculate the appellants hours of attendance at Cloverhill Prison and this record formed the basis for the above mentioned deductions. The hours logged were sent to the appellant by the respondent to check the accuracy but he did not engage with this process on the basis that he does not believe he is bound by the 39 hours week. However on review of these records for the purpose of this claim the appellant believes the log to be littered with errors in relation to his attendance.
Respondent’s case:
LD told the Tribunal that he was Governor of Cloverhill Prison between 2004 to 2007 and had worked with the appellant during that time during which he found the appellant to be a good doctor. LD confirmed that he spoke to the claimant in November 2006 in an effort to get the appellant to apply for a vacant full time post in Cloverhill Prison. However, LD denied that he had offered special terms to the appellant and as far as he was concerned the appellant was appointed on the same terms and conditions as the previous prison doctor was subject to. LD denied that he ever had a conversation with the appellant whereby he offered the appellant specific or special terms and conditions of employment and told the Tribunal that he was not in a position to do so.
RH, the current Governor of Cloverhill Prison also gave evidence to the Tribunal. RH confirmed the Tribunal that there was a limited time window during which the appellant could conduct a clinic with prisoners i.e. 09:30 to 12:30 and 14:00 to 16:30. The appellant worked from 10:00 to 12:30 and 14:00 to 16:30 Monday to Friday but RH said that he had been staying later in recent months. In his view, RH believed that the appellant was not complying with his contract however RH also told the Tribunal that he did not see the appellant’s contract. RH believed that the appellant should be at Cloverhill Prison for 39 hours per week regardless of whether work is available for the appellant. In this regard he confirmed that sometimes a clinic could not go ahead due to the unavailability of auxiliary staff. In relation to the manner in which hours were logged at Cloverhill Prison RH told the Tribunal that the records were kept by the respondent which the appellant refused to sign. RH accepted that there could be inaccuracies in those records and he further accepted that the appellant never agreed to this clocking in system.
The Director of Care and Rehabilitation (FB) gave evidence to the Tribunal. FB is responsible for all services including doctor’s contracts. In 2009 he was asked to deal with the protracted issue of non-compliance by certain doctors, including the appellant, with agreeing to sign newly negotiated contracts. A template contract had been agreed with the IMO in 2004 and it is common case the appellant never signed this contract. In 2010 a new contract was negotiated with the IMO which included a term that required a total commitment of 39 hours per week from relevant doctors. Further, the salary specified therein could be reduced on a pro-rata basis of the said 39 hours were not completed. These terms also appeared in the 2004 template contract. There had been historical issues with attendance hours of doctors and FB indicated that the respondent wished to move away from notional hours to actual hours worked and on this basis wished to pay doctors on the basis of what hours they worked. FB confirmed that he engaged with the appellant between 2010 and 2012 in relation to the new contract but no resolution was arrived at.
On cross examination FB confirmed that the appellant was remunerated differently to those under the 2004 contract and that he was paid as a supplier. He did have some additional remuneration elements but FB stated that these were things that were agreed locally. He confirmed that the appellant never agreed to the 39 hours (and this is borne out by correspondence between the parties), the first time it was raised was in 2010 and further, that the manner in which the appellant was paid was changed in 2012. FB agreed that the appellant is entitled to a contract of indefinite duration but not on the terms and conditions the appellant is referring to but rather the terms of 2004 template contract which included the 39 hours provision.
FB confirmed that the issue of clocking in was commenced in 2014 and he believes that the appellant has not co-operated with this system. The appellant was then offered an opportunity to validate his hours as recorded by the respondent and he refused this offer. On cross examination he confirmed that this process is not agreed with the IMO and the union has directed their members not to comply with this process.
In relation to the specific deductions at issue in this case the deductions made were based on the attendance records generated by the respondent. FB believes the deductions to be lawful as the appellant is, at minimum, bound by the terms of the 2004 template which does require 39 hours per week attendance (wherein he sees patients/inmates) and where this does not happen, allows for a pro rata reduction. For the periods in question the respondent does not believe that the appellant worked 39 hours therefore the deductions were made.
Determination
From the outset it appears to the Tribunal that there remains a contractual issue between the parties that cannot be resolved in this case. It is common case that the appellant is now entitled to a contract of indefinite duration but it is not agreed what terms this contract should take. The Tribunal is charged solely with deciding whether the three deductions detailed hereinabove were lawful.
The appellant believes that he is in a unique position within the organisation wherein he was agreed that he was granted ‘special terms and conditions’ to ensure his return to Ireland to work in Cloverhill Prison. The evidence of the respondent was that this was not the case. What is clear to the Tribunal however is that the appellant never signed a contract (which is not disputed) and the IPS never actually clarified his terms of employment from the start. Between 2007 and 2010 the appellant proceeded to operate on a certain basis and in 2010 when the issue of the new template contract arose he was approached to sign it. In reality the matter did not become a material issue until 2012 when certain payments were ceased without agreement and he was commenced on a salary as opposed to being paid as a supplier. In evidence FB brushed off the claim that the appellant was granted particular terms and conditions in 2006 and appears to suggest that because certain terms and conditions were “agreed locally” then the IPS are not now bound by them which is an unusual assertion to make and is unacceptable to this Tribunal.
What appears to have happened is that because the IPS failed to clarify the appellant’s terms and conditions of employment in 2006 on his return to Cloverhill Prison he was placed on locum rates and remained thereon. In 2010 a move was made to make all relevant employees “compliant” with a proposed new template contract but the appellant resisted. From 2010 certain “attempts” were made to do so by the respondent however no resolution was achieved and he remains non-compliant to date as far as the IPS is concerned. While a number of similarities were highlighted in evidence between the terms of the 2004 contract and the terms under which the appellant says he works, there remain some significant differences. These include the manner in which the appellant was paid (as a supplier) up until 2012, the attendance on a sessional basis without question up until 2010 and the appellant’s ability to work as a GP outside of his role with the IPS. This latter “term” does not seem to support a requirement to work a 39 hour week.
In relation to the deductions in question, they appear to have been calculated based on an entry and exit system put in place by the IPS. There is clearly an ongoing dispute about this system with the IMO and members have been instructed not to comply with it. In this case, the attendance records for the appellant have proven to be inaccurate and inconsistent and in spite of this the deductions were made based on these records. While the appellant was offered an opportunity to correct these records he chose not to but nevertheless they were used. Further, the respondent made two of the deductions some eight months after the relevant periods which no doubt makes it even more difficult to check the accuracy.
In all of the circumstances, the Tribunal believe the deductions detailed at paragraph 1 herein above were in contravention of the provisions of the Payment of Wages Act 1991 (as amended) therefore the appeal succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)