PWD1713

The Adjudication Officers decided as follows:

• “Having considered the matter carefully, I accept the Respondent’s submission that it was only obliged to pay the Complainant for the period of her maternity leave up to the expiry of her employment with them, i.e. to 10^thJanuary 2016.”

• “For the purposes of this contract, the term Non-Consultant Hospital Doctor (NCHD) refers to persons employed in the public health service in Ireland as Interns, Senior House Officers, Registrars, Senior Registrars, Specialist Registrars or otherwise for the purpose of providing medical or dental services and/or the pursuance of medical or dental training who for the purposes of such employment are not employed as Consultants.”

• I.Not relevant

  II.Pregnant NCHD’s are entitled to the following benefits:

  • a.26 consecutive weeks maternity leave

    b.Up to 16 weeks additional unpaid maternity leave

    c.Time off work without loss of pay to attend ante natal and post natal appointments

    d.Health and safety leave in certain circumstances

    e.Where the death or the mother occurs within 18 weeks of the birth the balance of her leave is transferred to the father of the child

    f.Protection of your job during maternity leave, additional maternity leave, fathers leave, health and safety leave and time off for ante natal and post natal care.

    g.The right not to be dismissed for any pregnancy related reason from the beginning of pregnancy until the end of maternity leave.

  III.While on maternity leave, an NCHD will receive her normal basic pay and Living Out Allowance, less any amount attributable to overtime, night work or shift work, unsocial hours payments or on call fees. NCHD’s are entitled to maternity pay from their existing employer for a full 26 week period, including circumstances where the contract expires prior to the end of their maternity leave.

• 
  1.Further to the Annual Review of Progress (ARP) you have been accepted on the College of Psychiatry of Ireland’s BST programme for the duration of 36 months (from 08 July 2013). During your training you may be required to rotate across different locations (training sites) to meet your training requirements. For each rotation you willreceivea contract of employment from the relevant employer setting out the terms and conditions of your employment for that period. Employment in a training site is subject to the local recruitment and other employment policies.
  • 1.1 You must engage directly with the training site in a timely manner to ensure employment requirements are met. Your acceptance on and continuing appointment to a post is contingent on you satisfying all the employment requirements. An employment contract is issued and signed in respect of each employment period as you progress through the training programme.

St Patrick’s Mental Health Services is a private hospital and is not publicly funded or part of the public health services.

It issued Dr Ayyaz with a fixed term contract of employment that is similar but not identical to the Common Contract. While it contains many provisions in common with that contract it makes no commitment to pay for any period of time after the the contract expires.

Dr Ayyaz commenced maternity leave while employed by St Patricks Mental Health Services. During her maternity leave she was paid her contractual entitlements by St Patricks until 10 January 2016 when the fixed term contract of employment ended . Thereafter she was due to commence employment with another hospital under the terms of her training contract. However that hospital was not, under the terms of the Common Contract, required to pay her until she returned from maternity leave.

The Common contract states that the existing employer is required to pay her. However that employer was not a party to the common contract and refused to pay her for a period of time after her employment with it ended.

The Complainant submits that St Patricks Mental Health Services has made an unlawful deduction from her salary contrary to Section 5 of the Payment of Wages Act 1991 which in relevant part states:

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

The Respondent submits that it had no obligation to pay the Complainant in respect of any period of time after her employment with it ended.

Section 5(6) of the Act states:

• (6) Where—

  (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

  (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant in making out her case seeks to rely on the Common Contract that operates in the Public Health Services. However the Complainant was not working in the Public Health Services during her rotation in St Patricks Mental Health Services. That is a private hospital that determines its own employment policies and is not bound by decisions of the Public Health Services including the terms of the Common Contract.

The Complainant was rotated into St Patricks Mental Health Services under a training scheme operated by the College of Psychiatry in Ireland. The terms of that scheme make provision for different employment arrangements by each hospital that participates in the scheme. The relevant section of the training agreement states:

• “Employment in a training site is subject to local recruitment and other employment policies.”

Accordingly the Court can find no grounds on which it can decide that the monies claimed by the Complainant were properly payable under the contract of employment she entered into with St Patricks Mental Health Services.

Moreover the terms of the Training Contract with the College of Psychiatry in Ireland clearly envisage this conflict arising and resolves it in favour of the employment policies and practices of each individual employer.

In these circumstances there is no statutory obligation on St Patricks Mental Health Services to take on a liability to pay wages it has no contractual or statutory obligation to pay.

Accordingly the Court rejects the appeal.

The decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
25 May 2017.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.