Complainant

Respondent

Anonymised Parties

A Senior Data Manager

A Hospital

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-00017399-001

12/02/2018

The complainant commenced working for the respondent, a hospital, on 30th October 2006 and held the position of Data Manager, Grade V position from March 2014. The complainant was appointed to the position of Senior Data Manager, Grade VI, with effect from 26th October 2016. The complainant moved to another department in November 2017. A Complaint Form was lodged in the WRC on 12th February 2018. The complainant's gross monthly pay was €4,200.

The complaint provided a detailed written submission.

In opening, the complaint submits that after being promoted to Grade VI in October 2016 she worked a total of 213.76 hours overtime for which, in November 2017, she was promised payment as she was unable to take time off in lieu during the period. However, the complaint did not receive the overtime payment and the respondent subsequently refused to make this payment in breach of the Payment of Wages Act, 1991.

The complainant submits that when she applied for the Grade VI role she understood that she would only be doing the additional Grade V role as an interim, temporary measure. However, she later discovered this was not the case.

As time went on the complainant found that she was working an unsustainable amount of extra hours in order to manage both the Grave V and Grade VI role (approximately 4.5 hours per week).   Whenever she discussed the extra hours with her manager he told her, "don't worry, the hospital will look after you."

The complainant submitted examples of the demands made on her to do extra hours.

At a meeting with her manager on 29th September 2017, the complainant submits that her manager did not dispute the complainant's assertion that she had accrued six weeks overtime but stated for the first time that Grade VI don’t get overtime pay and that the complainant should speak to HR about taking time off in lieu instead. When asked at this meeting whether her overtime had been sanctioned the complainant replied by stating that as she was required to work both Grade V and Grade VI roles- both full-time roles- that the sanction as implied, as there was no other way to deliver upon the workload demands. This assertion was not disputed by her manager.   It was agreed at this meeting that additional resources would be hired in the department. At this point the complainant had taken her four weeks unpaid leave in July & August but was unable to take any paid time-off-in-lieu in respect of the overtime she had accrued.

The complainant submits that she secured a new role in another department in October 2017 which was to commence in November 2017. As she would no longer be able to take the time off in lieu once additional resources were hired, she sought payment for the overtime accrued from when she started her Grade VI role.

On 8th November 2017, the complainant emailed her summary of the overtime she had accrued to her manager and his manager and asked that she be paid the overtime. She received a response on 16th November from her manager telling her that HR would liaise with her on the matter.  

The complainant submits that her IMPACT representative met with the HR Deputy Director in November 2017 who agreed on behalf of the respondent to pay the overtime accrued by the complainant. This commitment was subsequently repeated to the complainant's shop steward by the HR Deputy Director. However, the HR Deputy Director left the hospital and on 22nd December 2017 HR contacted the complainant by email stating that the respondent was, "not in a position to pay you this overtime."

Further exchanges of email took place and the HR Manager suggested that the complainant should process the matter through the grievance procedure.   One email from the HR Manager outlined the respondent's rationale in the matter. The complainant replied that although she accepted that it was not the custom and practice that overtime was paid in the area in which she worked, that the custom and practice was, that if overtime was worked – with no formal sanction and approval process – it was claimed back as time-in-lieu at the staff member's convenience. She went on to explain that due to her workload she could not even take her annual leave and therefore time-in-lieu was not an option for her during that period. However, the complainant stated that she was willing to take the overtime as time-in-lieu over the coming years, as an alternative solution.

The complainant submits that following a meeting between herself and the HR Manager on 1st February 2018, the complainant sent an email to the HR Manager stating that the issue was not a matter for a grievance as it had already been dealt with in depth with management already and if payment was not going to be made she would revert to custom and practice and take her overtime as time-in-lieu over a number of years as per her previous email.

The complainant submits that in a letter dated 6th February 2018, the HR Manager informed the complainant that, "the Attendance Management Policy stated it is the employee's responsibility to attend work." The letter also threatened disciplinary action. It was suggested in the letter that the complainant should initiate the Grievance Procedure, which had not been exhausted.

The complainant replied to the HR Manager's letter on 13th February 2018, again setting out her claim for overtime which was undisputed and her willingness to take time off in lieu but as neither was acceptable she had no choice but to lodge a claim under the Payment of Wages Act.

In concluding, the complainant submits that she is entitled to overtime payment under the Terms and Conditions of her employment Contract.   That there is no time limit or any pre-approval process or pre-condition in respect of the complainant's entitlement to overtime. The complainant submits that the respondent has at no time disputed that the she accrued 213.76 hours of overtime since starting in the Grade VI role.

The complainant accepts that it was normal in her area to take time-off-in-lieu for overtime worked but this was not possible due to her workload.     On 29th September2017, the complainant's manager and his manger agreed to hire additional staff which would enable the complainant take time-off-in-lieu. However, the complainant secured a new position before this was facilitated.

The complainant submits that the respondent's refusal to pay the overtime hours worked is an unlawful deduction of salary due to the complainant and the complainant has not consented to any such deduction.

The respondent provided a detailed written submission.

The respondent submits that it operates on very strict budgetary restrictions and therefore all or any overtime is normally pre-planned and approval obtained from management before it can be carried out. The level of overtime claimed by the claimant was not sanctioned or approved by the complainant's manager.

The respondent submits that the matter of alleged overtime was raised by the complainant's union representative in October 2017 over 11 months following the date that the first alleged overtime was worked in October 2016.

The respondent contends that the complainant was fully aware of and has utilised the overtime claim procedure but at no time in the 12 months prior to the initial claim did the complainant complete a form seeking payment for the overtime.

The respondent submits that the complainant's manager told her that the matter of overtime was being addressed.   The respondent also put forward that overtime was not approved and that the complainant normally worked to her contracted hours.

The respondent puts forward that the complainant was told when she interviewed for the Grade VI post that the Grade V duties would be attached to the post but that this would not incur overtime.

The respondent submits that it was not custom and practice that overtime was claimed or paid in the area where the complainant worked, which was acknowledged by the complainant herself. The respondent cannot understand why the complainant did not complete an overtime claim form, as she had done previously, and sought approval and payment rather than accumulate such alleged levels of overtime over a 12-month period.

During an exchange of emails the respondent's HR Manager advised the complainant to utilise the grievance procedures. The respondent did have discussions with the complainant's union on the matter but says that it never gave any assurances or confirmation that they were going to pay the overtime claimed by the complainant. The respondent believed the union had decided not to pursue the matter and were therefore surprised to receive the claim form from the WRC, notably without the support of the union.

I have considered this matter carefully. Summarising the case; after the complainant was upgraded to her Grade VI position she worked a substantial number of hours, (though how many hours is a contentious issue between the parties), in excess of her "contracted" hours. However, as agreed by both parties, paid overtime was not the custom and practice for the Grade VI post, rather time off in lieu is granted to make up for such excess hours. Towards the middle to end of 2017 it became apparent that it was going to be impossible for the complainant to draw down her time in lieu for the excess hours she had already worked.

At this stage the complainant began the process of seeking financial payment for the excess hours she had accumulated, claiming that she had been promised that she would be looked after. The respondent denies any such assurances were given and advised the complainant to utilise the grievance procedures. The situation reached a head in late 2017 when the complainant moved to another role, making it impossible for her to draw down her accumulated hours; at this juncture the only real option available, according to the complainant, was that her excess hours be reclassified as overtime and that she be paid for same. The respondent refused to entertain this idea and the complainant referred the matter to the WRC.

The respondent submits that the refusal of the respondent to pay the overtime hours that were worked is an unlawful deduction of salary due to the complainant and the complainant has not consented to any such deduction.

The Payment of Wages Act, Section 1 (1)(a), defines wages as:

“ 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, and

( b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5 (1) of the Act states:

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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a) any act or omission of the employee, or

( b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee),

In this case, no deductions were made from the complainant's wages as no overtime payment was due for work in excess of contracted hours.

It is agreed by both parties that time in lieu, for hours worked in excess of contracted hours, rather than overtime payments is the norm in the area where the complainant worked during the period relating to this complaint.   Unfortunately, for the complainant, for reasons beyond her control, she could not avail of the time in lieu owing to her.

Although I cannot uphold the complaint made under the Act for the reasons outlined above, it is unfair that the complainant seems to have lost the time in lieu she accrued during the period in question. It behoves the respondent to address this matter in a spirit of generosity and fairness.

The complaint under the Payment of Wages Act, 1991, is not upheld.