Complainant

Respondent

Anonymised Parties

A Doctor

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-00024234-001

18/12/2018

Dr. X commenced employment as a Specialist Registrar in the respondent hospital on Monday 9 July, 2018. Special Registrar is a grade of Non -Consultant Hospital doctor (NCHD) as defined and set out in the collectively bargained and nationally standardised NCHD contract. Specialist Registrar are experienced medical practitioners participating in a structure programme of Higher Training (HST). Participation in the HST is only available after completing a recognised medical degree, a year of intern training and a scheme of Basis Specialist training. In addition to the required work experience set out above most NCHDs will also work in temporary NCHD rolls which are outside of formal training schemes often referred to as stand-alone posts.

In either stand-alone or training positions NCHDs typically work on fixed term contracts of employment for 6 to 12 months in duration often moving from one hospital location to another after the completion of a contract.

Dr X was initially trained and certified as a medical doctor in Pakistan. The Irish Medical Council recognises medical education and internship in Pakistan as equivalent to Irish medical education and internship. After completing his internship year in Pakistan Dr X worked as the equivalent of an SHO in Irish ‘stand alone’ posts in Pakistan from February 2010 to February 2014. A total of 4 years. Dr X immigrated to Ireland in 2014 and worked as a stand-alone SHO in rolls from February 2014 to July 2015 a period of 1 year and 4 months. Dr X worked as an SHO in BST from July 2015 to July 2017 a period of 2 years. Combining these years served as an SHO Doctor X had completed a total of approximately 7 years and 4 months as an SHO before assimilating to the grade of registrar in July 2017. This placed him on the 7th point of the SHO salary scale from at least July 2016. Assimilation from the grade of SHO to the grade of registrar is governed by the provisions of the Department of Health circular 10 -71. In July 2017 Dr X was appointed as registrar in respiratory medicine at St. Vincent's Hospital Dublin. Using the rules of the aforementioned circular Doctor X was placed on point 3 of the registrar pay scale. Dr X completed one year in his role from July 2017 to July 2018. Then he was awarded a place in the higher specialist training program in respiratory medicine and was assigned to a specialist registrar post in the respondent hospital from July 2018.

Section 16 of the NCHD contract 2010 is titled ‘incremental credit’. It is not in dispute that doctor X's increments as described above were implemented correctly as per section 16, up to his assimilation of the grade of specialist registrar. The matter in dispute is Dr X’s assimilation to grade of specialist registrar from the grade of registrar. Section 16 (i) of the NCHD contract provides as follows:

Assimilation to the specialist registrar salary scale shall be on the basis of completed years of service as follows:

Dr X had completed a full year working as a 3rd registrar or a registrar on 3rd point of incremental pay scale in St. Vincent's hospital Dublin immediately prior to his appointment as specialist registrar in the respondent hospital. The complainant states that the instruction provided by section 16 (i) provides that Dr X to be placed an 4th point of the specialist registrar pay scale as he had completed a year as 3rd registrar immediately prior. The commonly accepted practice in administering this provision, which has existed in a very similar form since the formalisation of the role of specialist registrar in the year 2000 has been to regard the ‘year’ listed as a reference to the incremental year. The distinction between incremental year and total completed years at a grade occurs because of Dr X’s experience abroad and time as a stand-alone SHO. Most NCHDs do not achieve the incremental points of five, six or seven SHO as they typically only work as an SHO during basic specialist training and progress to the grade a registrar prior to achieving those points. The application of this table in the way the respondent hospital proposes effectively eliminates any incremental progression experience or value that Dr. X obtained in his six years working as an SHO. During this period Dr.X provided service in a variety of areas of medicine which have informed and improved his ability to practice medicine including work as a humanitarian doctor as a doctor providing psychiatric care to children and adults with drug addictions and for 3 years as part of his basic specialist trainee program in medicine. The value of his work in those areas is acknowledged by the function of circular 10-71 which provides for additional incremental progression upon his assimilating to registrar as a result of his advanced increment as an SHO.

The basic salary for the 2nd point of the specialist register salary scale from July 2018 to October 2018 was €63,484. The basic salary for the 4th point of the specialist registrar salary scale for the same period was €67,508. The basic salary for the 2nd point of specialist registrar salary scales from October 2018 to present is €64,118. The basic salary for the 4th point of the specialist registrar salary scale for this period is €68,183. In addition to basic pay in respect of 39 hours per week Dr. X also works overtime paid at an hourly rate of time + 1/4 and on Sundays and public holidays which is paid at an hourly rate of single time extra (double time). Through a review of Dr. Xs pay scale, taking into consideration the hours he worked and at those premium rates the complainant estimates that he is currently owed approximately €3,500.

Dr. X is currently employed on a 12 month fixed term contract in the post of a Specialist Registrar (SpR) in Medicine with Wexford General Hospital with effect from 9th of July 2018.

On appointment to this post, Dr. X was assimilated from the Registrar scale to the 2nd point of the SpR scale as per the standard 2010 NCHDD contract.

• The Case before the adjudicator is:
• • Claimant wishes to be placed on a higher incremental point of the Specialist Registrar (SpR) payscale.

Dr. X commenced employment on a 12 month fixed term contract in the post of a Specialist Registrar (SpR) in Medicine with Wexford General Hospital with effect from 9th of July 2018. He was issued with, and signed the standard Contract of Employment for Non-Consultant Hospital Doctors for this post on the 8th May 2018.

Dr. X had previously been employed as a Senior House Officer (SHO) in the respondent Hospital from 2014- July 2017 before taking up a post at St Vincent’s University Hospital Dublin as a Registrar from July 2017 to commencement of current contract in Wexford in July 2018. This is not disputed and is confirmed in Dr. X’s CV and in his Verification of Service from St. Vincent’s University Hospital. This would account for 1 years completed service as a Registrar.

Dr. X was paid at the 3rd point of the registrar scale while in employment in St. Vincent’s Hospital. Placement at point 3 of the registrar scale was based on his total service history as an SHO, both in Ireland and Overseas. It is important to note that the Registrar scale is not the same the Specialist registrar scale and different criteria are applied for assimilation onto the Specialist Scale as outlined in the NCHDD contract of employment.

As per the terms of section (16.i) of his employment contract, Dr. X was assimilated to the second point of the Specialist Registrar salary scale on the basis of completed years of service.

It is clear from his employment contract that additional awards on the Specialist Registrar scale after Point 2 is directly linked to completed years of service as a Registrar only.

Based on the existing 2018 pay scales this was equivalent to €63,484 per annum, rising to €64,119 after the October 2018 public sector pay adjustments and this can be clearly identified from Dr. X’s CorePay records.  

In September 2018 and again in October 2018, the IMO wrote to the respondent Hospital to request a recalculation of point of scale at which they confirmed that Dr. X had completed 1 year at registrar level.

It is the Respondents view that this admission substantiates the HSE’s position that Dr. X had been placed on the correct point of scale as the SpR is clearly based on completed years of service both as per Dr. X’s contract:

• • “Assimilation to the Specialist Registrar salary scale shall be on the basis of completed years of service”

and the IMO’s communication to the HSE:

• • “As Dr. X completed a year of service...” .

Written confirmation of same was issued by the Senior Staff Officer, Wexford General Hospital to Dr. X’s representation, the IMO on 4th October 2018.

Later in October 2018, the Senior Staff Officer also sought confirmation of same from the South East Employee Relations Office and in January 2019 a second opinion from the Employee Relations Advisory Service that the correct point of scale had been applied to Dr. X.

Both offices confirmed that the point of scale was correct and in support of this interpretation of the terms of Dr. X’s contract the respondent cited a previous Rights Commissioner Decision from 2015, Dr Loy Alhamdan V Waterford Regional Hospital, r-132149-ir-13/MMG where the claimant’s referral had failed in a similar case.

The issue between the parties is a very net one.

Dr X is employed by the respondent. Unusually, he completed seven years as an SHO. In those unusual circumstances, when he became a registrar, he was put on point three of the registrar pay scale with a salary of €59,528 per annum and with an incremental date of 10th July 2018. He completed his first year as a registrar in July 2018 when he was appointed a higher special training program in respiratory medicine and was assigned a specialist registrar post in the respondent hospital.

The issue between the parties is in relation to the interpretation of the pay scale rules which apply to registrars and specialist registrars. The complainant argues that he should have been placed on point 4 of the scale of specialist registrar's having completed four years as a registrar on PT 3 of that scale.

The respondent states that registrar’s pay scales are based on money, but the specialist registrar scale is based on years of service. Dr X was assimilated from the registrar scale to the second point of the special registrar scale. This was done in line with the agreed standard 2010 and NCHD contract as he had completed one year of service as a registrar.

Clearly the confusion has arisen because of the unique set of facts pertaining to Dr.X. In normal circumstances, when he became a registrar, he would have been placed on point 2 of that scale but because of his lengthy years of service as an SHO, he was placed on point 3. On a thorough perusal of the contract and the documentation submitted, I am satisfied that the placing of Dr X on point 3 of the registrar scale does not mean that he moves to point 4 of the special registrar scale, having completed one year as a registrar. At clause 16 (i) of his contract of employment, it clearly states that “assimilation to the specialist registrar salary scale shall be on the basis of completed years of service as follows:

I am satisfied that the respondent’s interpretation of the complainant’s contract of employment is the correct one and that Dr X is on the correct point of scale for specialist registrars. Accordingly, I find that the complaint is not well founded.

The complaint fails.

The complaint fails.