FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : HSE NORTH EAST AREA - AND - ATIQA RAFIQ DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no ADJ-00009579.
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court over two days on 31 May 2018 and 15 August 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-
DETERMINATION:
The Complainant is a Consultant Psychiatrist employed by the HSE. She was appointed to the permanent position of Old Age Psychiatrist in the Louth Meath Mental Health Services on 11 January 2016. She had previously held a temporary Consultant Psychiatrist position in the HSE on a fixed-term contract of employment between 2007 and 2011. At that time, she had not completed the required Specialist Training that would qualify her for appointment to a permanent Consultant position. She undertook that training in General Adult and Old Age Psychiatry for four years between July 2011 and June 2015.
When she completed the Specialist Training she worked in the private sector for a period of less than six months. She was successful in a competition for the permanent Consultant position referred to above.
On appointment she was deemed a “New Entrant” and had the “New Entrant Salary Scale”, which was introduced with effect from January 2011, applied to her. She contends that she was not a new entrant within the meaning of the relevant legislation and/or relevant Circular letters issued by the HSE. She claims that she is entitled to the pre-2011 salary scales and submits that the Respondent’s failure to apply those scales to her amounts to an infringement of the Payment of Wages Act s5(6) which states
- 5 (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 Complaint
The Complainant made a complaint under the Payment of Wages Act to the Workplace Relations Commission claiming that the HSE had made an unlawful deduction from her wages contrary to Section 5(6) of the Act. An Adjudication Officer, in a Decision delivered on 15 March 2018, decided that the Complaint was not well-founded. She appealed against that Decision to this Court on 24 April 2018. The appeal came on for hearing before the Court on 31 May and resumed on 15 August 2018.
The Complainant maintains the that Adjudication Officer’s Decision was wrong in fact and law and restates her complaint that she was subjected to an unlawful deduction from her wages as the salary on which she was placed on the New Entrant Salary scale was less than that which was properly payable to her, a public servant who was not a “New Entrant” in accordance with the relevant statutes and circular letters issued by the Department of Health and the Health Service Executive.
In particular, she submits that she does not come within the scope of the Circular 21/12/2010 as it applies to “new entrants” and she was not, at the relevant time, a new entrant to the Public Service.
The Relevant Statutes and Circular Letters
The term New Entrant first appears in the Public Service Superannuation (Miscellaneous Provisions) Act 2004 which was to implement the removal of the compulsory age of retirement for new entrants to the Public Service after a certain date in 2004.
In relevant part it states
2.—(1) Subject tosubsections (2)to(6), reference in this Act to “new entrant” means a person who is not serving in a public service body, or a body to whichSchedule 1relates, on 31 March 2004 but becomes a public servant on or after 1 April 2004.
2(4)(b) states
(b) a person was serving in a public service body or a body to which Schedule 1 relates prior to 31 March 2004 and left such an office or position and takes up appointment as a public servant on or after 1 April 2004—
(i) under the same contract of employment, or
(ii) no later than 26 weeks following the last day of service prior to 31 March 2004,
or
(c) a person who immediately before 1 April 2004 stood admitted as a trainee Garda to the Garda College at Templemore
The term “new entrant” also appears in the 2008 Consultant’s Contract for the purpose of superannuation and age of retirement. It has no application in that document to salary scales.
Circular Letter 02/2011
The next relevant reference to new entrant scales arises in Department of Health Circular Letter 02/2011 at paragraph 9 which states
- 1.New pay scales have been prepared for the traditional entry-level grades or posts for application to new entrants to the health sector from 1 January 2011 and are now enclosed.
2.Not relevant
3.The reduced scales will apply where a person is a first-time entrant to a profession or group
4..5.6.7.8. not relevant
5.As this change applies to new entrants to the health service to these grades only, the question of whether a person being appointed to such a grade is a first-time entrant and therefore will be subject to the revised scales will be established as follows:- a.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 mechanism) 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.
b.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.
c.Not relevant
d.Public servants on an approved break in service, leave, temporary assignment or secondment to another employer should be assigned on return to the public service to the appropriate pre-1 January 2011 scale.
e.Incremental Credit
f.All new appointees to any grades will start at the minimum point of the scale. The Government has decided that all new appointees to entry grades (subject to the criteria set out above) will start at the minimum point of the new reduced scale.
- Circular 013/2015
The next relevant circular is HSE HR Circular 013/2015. This circular makes provision for a new reduced salary scale for newly appointed Consultant Doctors employed in the HSE.
In relevant part it states at paragraph 3 as follows
3. Application
a) the revised salary scales should be applied with effect from 1September 2014 as follows:- i) to any Consultant employed in a permanent or non-permanent Consultant post as of 1stSeptember 2014 or to any date since then who is subject to the Department of Health’s 1stOctober 2012 Consultant salary scale;
ii) the revised salary and B and C Factor allowance rates apply to all Consultant posts where the interview for same took place on or after 1stOctober 2012.
iii) Those Consultants who have been appointed to a Consultant post but have not yet taken up duty should be paid at the relevant new rate from the day they take up duty;
iv) All Consultant posts should be advertised with reference to the revised salary scales.
- i) to any Consultant employed in a permanent or non-permanent Consultant post as of 1stSeptember 2014 or to any date since then who is subject to the Department of Health’s 1stOctober 2012 Consultant salary scale;
- a.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 mechanism) 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.
The October 2012 pay rates referred to above accompany a note dated 26 September 2012 from Mr Fergal Goodman, Principal Officer, Department of Health, to Mr Barry O’Brien, National Director of Human Resources, in the HSE in which he states
“Revised Salary for New Medical Consultants
I am writing to you regarding arrangements for the application of revised salary rates for New Entrant Consultants from October 2012.
I am to convey the Minister’s approval for the application of the attached salary scales from 1 October 2012, on the basis set out hereunder.
Those offered contracts
Those who have been offered contracts at the 2011 rates are not affected.
Those successful at interview
Those who have been successful at interview and are awaiting PAS and /or HSE clearance are not affected.
Where selection process is in train or not yet commenced
Any posts that are to be filled from interviews which have not yet taken place will be subject to the new scales.
It would be appreciated if you could circulate this letter and attached salary scales within the HSE and to relevant agencies and bodies under its aegis, with any further guidance you deem as appropriate.
Yours sincerely
Fergal Goodman
Principal Officer”
Mr O’Brien issued a Circular in like terms within the HSE and to relevant agencies on 28 September 2012.
The Complainant’s Case
The Complainant submits that she is not a new entrant for the purposes of the relevant circulars. She submits that she was in employment as a Hospital Consultant Doctor on a fixed-term contract of employment from 2007 until July 2011 when she resigned her position to undergo Specialist Training to qualify her for appointment to a permanent Hospital Consultant position. She submits that she had worked under a contract of employment on the pre-2011 pay rates. She submits that she remained a public servant while undergoing Specialist Training between 2011 and July 2015. She submits that she worked in the private sector for less than six months after she completed Specialist Training. She submits that she applied for and was appointed to a permanent Consultant post in January 2016 less than six months after she went to work in the private sector. She submits that for the purposes of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 she never broke her service and was, at all relevant times, a public servant within the meaning of the Act and all relevant circulars which adopted the definition set out in the Act.
She submits that the Circulars on which the Respondent relies and in particular Circular 03/2012 in fact contradicts the Respondent’s contention that was a new entrant and therefore not entitled to the pre-2011 salary scales on appointment to a permanent Consultant post in 2016. She submits that a plain reading of that Circular discloses that she was not within scope of the Circular ab initio.
She submits that her employment history with the HSE places her outside the new entrant category for all purposes and accordingly claims she is entitled to be appointed to the pre-2011 salary scales with effect from the date of her appointment to her current post.
The Respondent submits the Complainant’s submissions are without merit. It submits that the Complainant seeks to rely on Circular 2/2011. It submits that the Complainant seeks to rely on clause 5(a) which states
- a. 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 mechanism) 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.
However, it submits that the following section of the circular brings her within the scope for the reduced pay scales. It states
- b. 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.
Findings of the Court
The Court has given careful consideration to the extensive written and oral submissions of both sides to this complaint.
Having reviewed the evidence adduced, the relevant Circular letters and the history of the Complainant’s employment in the HSE the Court finds that the complaint is not well-founded.
The reasons for these finding are as follows
- 1. The Complainant had resigned her post as a temporary Hospital Consultant in 2011 to undergo Specialist Training to qualify her for appointment to a permanent Hospital Consultant post. During those four years she worked as a Registrar-in-training. After she qualified she had no automatic entitlement to appointment as a Consultant in the public service. She was merely qualified for appointment. In that regard her appointment to a Consultant post was not automatic. Indeed, she had no guarantee of appointment to such a post. Such posts are filled through an open public competition. The Complainant participated successfully in such a competition and was appointed to a post in January 2016. Prior to her appointment in 2016 the Complainant was working in the private sector. However, as she had, within the previous six months, been working as a Registrar in the HSE while undergoing Specialist Training, her service as a public servant must be deemed continuous. Accordingly, when she was appointed to the post of Consultant in 2016 her previous post was that of Registrar which is a post that is not analogous to that of a Consultant Doctor.
2. The Complainant seeks to rely on the fact that she was not a new entrant and therefore does not come within the scope of the Circular. However, the Circular must be read in its entirety to understand its true intent. In that regard the Court accepts that the proper construction of Section 9 in its entirety means that the Complainant had to meet two conditions to be placed on the pre-2011 salary scale. She had to be an existing public servant and the appointment she was taking up had to be analogous to that which she held prior to the appointment. In that regard the Court takes the view that the only reasonable interpretation that can be placed on that provision is that the analogous post must have been held by the Complainant immediately prior to the appointment that was being undertaken at that time.
3. In this case the Court finds that the Complainant was indeed a public servant and meets that condition for exclusion from the 2011 salary scale. However, she was not being appointed to a post that was analogous to that which she held prior to her appointment to the Consultant position. On that ground the Court finds that the Complainant is not entitled to the pre-2011 salary scale.
4. The Court further finds no merit in the Complainant’s submission that she can rely on the historic temporary Consultant post she held some four years earlier. The Court finds that a proper interpretation of the Circular does not bear that interpretation. The Court finds that the relevant post for determining what is and what is not an analogous appointment is that which was held immediately prior to the new post that she had won through open competition.
5. The Court further finds that Mr Goodman’s letter referred to above is very clear in that it makes express provision for all new appointees to Consultant posts to be placed on the new reduced salary scales. It states- Any posts that are to be filled from interviews which have not yet taken place will be subject to the new scales.
For these reasons the Court determines that pre-2011 salary scale was not one to which the Complainant was entitled on appointment in 2016. That salary therefore was not properly payable to her and as a consequence section 5(6) of the Act was not infringed in this case.
The Court determines that the Complaint is not well-founded. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
6 September, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.