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-00012522-001

15/07/2017

The complainant is a Consultant Psychiatrist and has been employed by the Respondent on a permanent contract since 11th January 2016. The Complainant contends that she was placed on a new entrant pay scale in January 2016 despite the fact that she was not a new entrant. The Complainant is seeking retrospective application of the correct pay scale applicable to her post.

The Complainant was previously employed on a temporary basis as a Consultant Psychiatrist with the Respondent between 2006 and 2011. The Complainant stated that she then left the position in 2011 to complete higher specialist training in Psychiatry. On completion of this training in 2015, the Complainant stated that she was successful in her application for the permanent post of Consultant Old Age Psychiatrist with the Respondent.

The Complainant stated that the term “new entrant” was defined in Department of Health Circular No 2/2011 and in documentation issued by the Department of Finance on 21/12/2010 as follows:

9(i) Subject to paragraph (ii) public servants (using the definition set out in the Financial Emergency Measures in the Public Interest Act, 2009) who have been in permanent or temporary employment in the public service on or before 31 December 2010 will not generally be regarded as new entrants. Therefore, they should, on employment to a permanent position through open or confined schemes of appointment (or other mechanisms) to another Public Service post/position or on employment on a temporary basis (including substitution or on a fixed term contract) in one of the grades affected, be assigned to the appropriate pre 1-January 2011 scale in such a new post/position.

(ii) However the arrangements outlined at (i) above apply only where the person is being recruited to the same or an analogous grade/role as their previous public service employment, whether that employment was permanent or temporary.

The Complainant’s position is that as she was not a new entrant at the time of her permanent appointment and having previously held the Consultant position in a temporary capacity, she should have been placed on the salary scales that applied pre-January 2011.

The complainant stated that she has been given incremental credit on the Post October 2012 pay scale as amended for her previous service in the temporary consultant role. The complainant is seeking retrospective application of the pre-January 2011 pay scale.

The Complainant cited Labour Court Decision No AD1529 in support of her position. The Court recommended that the Complainant in that case be placed on the pre-January 2011 pay scale on the basis that the role that she previously held and the new role were analogous.

The Respondent contends that the Complainant was placed on the correct pay scale on appointment to the permanent post in January 2016. The Respondent contends that throughout the period of higher specialist training the Complainant held the substantive grade of Registrar. The Respondent’s position is that the Department of Finance Circular 21/12/2010 states at Paragraph 9(ii) that applying Pre-January 2011 pay scales can only apply

“where the person is being recruited to the same or an analogous grade/role as their previous public service employment, whether that employment was permanent or temporary”.

The Respondent, therefore, contends that the substantive role of Registrar was not the same or analogous to the permanent Consultant post.

Accordingly, the Respondent’s position is that the complainant was correctly placed on the pay scale applicable to new entrants who were interviewed and appointed into permanent positions after 1st October 2012 as amended in September 2014 (HR Circular 013/2015 refers).

In relation to this complaint, I find as follows:

The Complainant held the position of Consultant Psychiatrist between 2006 and 2011 on a temporary basis after which she completed four years of higher specialist training in Psychiatry in 2015. The substantive grade while completing the higher training was that of Senior Registrar.

The Complainant applied for and was successful in obtaining a permanent post commencing in January 2016 as a Consultant Psychiatrist.

The complainant submitted a significant amount of documentation in relation to this issue, including various email exchanges and guidance that she had been given on the issue by the officials that were tasked with applying the appropriate pay scale to her.

The Respondent contends that the October 2012 pay scale as amended is appropriate for the complainant as the Registrar post previously held by the Complainant was not the same or analogous to the permanent consultant post.

The complainant contends that she is not a new entrant, has previously held a Consultant Psychiatrist post and as a returning post holder, is entitled to be paid at the pre-January 2011 pay rates.

The complaint is made pursuant to Section 5(6)(a) of the Payment of Wages Act, 1991 which states as follows:

(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),

In the instant case, I find that the Respondent correctly applied the post 1st October 2012 pay scale to the complainant as a new entrant to the permanent Consultant post following an open recruitment process. On that basis, I do not find that an unlawful deduction has been made by the employer in contravention of Section 5 of the Payment of Wages Act, 1991.

Having taken into account all of the written and verbal submissions of the parties and all of the evidence adduced at the hearing, I find that the complaint is not well founded.

Unlawful deduction, new entrant