Complainant

Respondent

Anonymised Parties

Doctor

Hospital

Representatives

MP Guinness BL instructed by Hayes Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00017175-001

31/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017175-002

31/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00017175-003

31/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00017175-004

31/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017175-005

31/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017175-006

31/01/2018

The Complainant is employed as a Clinical Director in a hospital.

The first adjudication hearing in this case was scheduled for 3rd September 2018. At the outset of that hearing both parties indicated that they had agreed a settlement and requested the adjournment of the hearing to allow for the implementation of the settlement agreement.

On 26th October 2018, the Complainant’s representatives wrote to the WRC to request that the adjudication hearing be rescheduled because the Respondent had not implemented the terms of the settlement agreement.

On 14th November 2018, the WRC wrote to the parties to inform them that the adjudication hearing had been rescheduled for 12th December 2018.

On 26th November 2018 the Workplace Relations Commission received a postponement request from the Respondent. On 30th November 2018 the Workplace Relations Commission received a postponement request from the Complainant. Both postponement requests were refused by the WRC and the hearing proceeded as scheduled.

Specific complaint CA-00017175-004 under the Protection of Employees (Fixed-term Work) Act, 2003 was withdrawn at the hearing.

The Complainant submits that, in naming XXX as the Respondent on the complaint referral form, the wrong Respondent has been named.

The Complainant submits that the correct name of the Respondent is YYY and she requests that the complaint referral form is amended accordingly.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was on notice of the time, date and location of the adjudication hearing.

I must now decide whether the Respondent named on the complaint referral form can be changed to the correct legal name of the Complainant’s employer.

In making my decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.

Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.

In County Louth VEC –V- Equality Tribunal [2009] IEHC 370, the High Court found that:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

In considering this issue, I note that a copy of the complaint referral form and notification of the hearings was issued to Respondent XXX.

I also note that the Respondent wrote to the WRC on 4th December 2018 using Respondent YYY headed paper.

Furthermore, I note that in an email to the WRC dated 11th December 2018, the Respondent requested that all correspondence relating to the herein case be sent to a named individual in Respondent YYY.

In evidence, the Complainant submitted a copy of a signed agreement between the parties dated 3rd September 2018. I note that the Respondent named on the settlement agreement is YYY / XXX.

I accept that in seeking to record the legal name of the Respondent employer on this form that the Complainant through inadvertence failed to cite the precise legal name of the Respondent. I am satisfied that the actual employer was fully aware at all material times of the herein proceedings.

I am also satisfied that the granting of leave to amend the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent. The Respondent attended the initial adjudication hearing. The Respondent also signed a settlement agreement between the parties under the name YYY / XXX.

Having regard to the foregoing, I find that the misstatement of the Respondent’s name on the complaint referral form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer.

Taking all of the above into account, I find that the correct name of the Respondent is YYY / XXX.

The Complainant submits that she was appointed as a Consultant in 2009 and as a Clinical Director in 2010.

The Complainant submits that under HSE Circular 022/2009 it had been confirmed that Clinical Director allowances are pensionable.

The Complainant submits that from her appointment as Clinical Director, employee pension contributions were deducted from her Clinical Director allowance until 31st August 2017.

The Complainant submits that on 31st August 2017 when she was six weeks post-partum, she received a letter which indicated that her role as Clinical Director was not pensionable. She submits that the letter was issued to her without warning and without consultation.  

The Complainant further submits that employee pension contributions which had been deducted since December 2010 were transferred into her bank account. The Complaint asserts that she did not request or accede to the payment of this money to her.

The Complainant calls upon the Respondent to reverse its unilateral action and to confirm that the Clinical Director allowance is pensionable.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was on notice of the time, date and location of the adjudication hearing.

The Respondent attended   the first scheduled hearing in this case but did not give any evidence as the hearing was adjourned at the request of the parties in order to afford them the opportunity to implement a settlement agreement.

The Respondent did not attend the adjudication hearing which took place on 12th December 2018.

My findings in respect of the herein complaint, therefore, are based on the uncontested evidence of the Complainant presented at the hearing on 12th December 2018 which included a copy of a signed agreement between the parties dated 3rd September 2018.

I note that the agreement between the parties contains a statement to the effect that the Respondent confirms that the Complainant’s appointment to the Clinical Director position pursuant to a letter dated 12th November 2010 is permanent and that the Clinical Director allowance payable to the Complainant is fully pensionable with effect from 1st December 2010.

Based on the uncontested evidence of the Complainant, I find that this complaint is well-founded and that the Clinical Director allowance payable to the Complainant is fully pensionable with effect from 1st December 2010.

I direct the Respondent to implement the terms of the agreement regarding the pensionability of the Clinical Director allowance with immediate effect if they have not done so already.

The Complainant submits that she was appointed as a Consultant in 2009 and as a Clinical Director in 2010 for an initial period of two years, after which the appointment would be reviewed.

The Complainant submits that the outcome of the review was not communicated to her and that she continued in her role.

The Complainant submits that under HSE Circular 022/2009 it had been confirmed that Clinical Director allowances were pensionable.

The Complainant submits that from the date of her appointment as Clinical Director, employee pension contributions were deducted from her Clinical Director allowance until 31st August 2017.

The Complainant submits that on 16th February 2017, she was advised, at a meeting with the Chief Executive, that the Respondent saw no reason why her appointment would not be confirmed as permanent and that this would be confirmed after the meeting. The Complainant maintains that despite the assurances, her appointment was not confirmed as permanent.

The Complainant submits that she was invited to meet with the HR Director on 4th July 2017, five days prior to commencing maternity leave. At that meeting, it was agreed that the Complainant would contact the HR Director during the later stages of her maternity leave to arrange a further meeting to discuss options in relation to confirming her Clinical Director contract as permanent.

The Complainant submits that the next correspondence which she received in this regard was a letter dated 31st August 2017 when she was six weeks post-partum, in which it was indicated that her role as Clinical Director was not pensionable.   She submits that the letter was issued to her without warning and without consultation.

The Complainant further submits that employee pension contributions in respect of the Clinical Director allowance which had been deducted since December 2010 were transferred into her bank account. The Complaint asserts that she did not request or accede to the payment of this money to her.  

The Complainant contends that she suffered discrimination on the grounds of gender and family status through the provision of less favourable pension terms.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was on notice of the time, date and location of the adjudication hearing.

It is well settled that maternity leave is a protected period during which a woman’s terms and conditions should not be altered to her detriment.

In Land Brandenberg v Sass, (C-284/02) [2004] E.C.R. I-11143; [2005] I.R.L.R. 147 at para.48., the ECJ stated:

“… Community law requires that taking such statutory protective leave should interrupt neither the employment relationship of the woman concerned nor the application of the rights derived from it and cannot lead to discrimination against that woman.”

Based on the uncontested evidence of the Complainant, I note that prior to the commencement of the Complainant’s maternity leave, it had been agreed between the parties that a further meeting to discuss the pension status of the Complainant’s Clinical Director allowance would be arranged. Despite this, the Respondent chose to fundamentally alter the Complainant’s terms and conditions with regard to her pension entitlement in respect of her Clinical Director allowance while she was on maternity leave.

I am at a loss to understand why, when the Complainant was on maternity leave and a further meeting had been mooted, the Respondent took a unilateral decision on the pensionability of the Complainant’s Clinical Director allowance which impacted negatively on the Complainant.

Based on the uncontested evidence of the Complainant, I find that the Complainant was discriminated against by reason of a detrimental change to her pension entitlement during her maternity leave and was therefore discriminated against on the gender and family status grounds.

I find that this complaint is well-founded and I order the Respondent to pay the Complainant redress of €5,000.

The Complainant submits that she was originally appointed to the role of Clinical Director in 2010 for an initial period of two years, after which the appointment would be reviewed.

The Complainant submits that on the expiry of the two year period, she was not provided with a written statement setting out the objective ground justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration at any stage.

The Complainant submits that on 16th February 2017, she was advised, at a meeting with the Chief Executive, that the Respondent saw no reason why her appointment would not be confirmed as permanent and that this would be confirmed after the meeting.

The Complainant submits that it was agreed that the Complainant would contact the HR Director during the later stages of her maternity leave to arrange a further meeting to discuss options in relation to confirming her Clinical Director contract as permanent.

The Complainant asserts that there are no objective grounds justifying the renewal of her fixed-term contract and, therefore, that she is entitled to a contract of indefinite duration in relation to her role as Clinical Director.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was on notice of the time, date and location of the adjudication hearing.

The Respondent attended   the first scheduled hearing in this case but did not give any evidence as the hearing was adjourned at the request of the parties in order to afford them the opportunity to implement a settlement agreement.

The Respondent did not attend the adjudication hearing which took place on 12th December 2018.

My findings in respect of the herein complaint, therefore, are based on the uncontested evidence of the Complainant presented at the hearing on 12th December 2018 which included a copy of a signed agreement between the parties dated 3rd September 2018.

I note that that the agreement between the parties contains a statement to the effect that the Respondent confirms that the Complainant’s appointment to the Clinical Director position pursuant to a letter dated 12th November 2010 is permanent.

Based on the uncontested evidence of the Complainant, I find that the Respondent, by virtue of signing the agreement, has confirmed that the Complainant’s Clinical Director position is permanent.

Based on the uncontested evidence of the Complainant, I find that this complaint is well-founded and that the Clinical Director position to which the Complainant was appointed on 12th November 2010 is permanent.  

The Complainant submits that due to the Respondent’s failure to provide sufficient cover, she did not receive her statutory entitlement to annual leave since her appointment as Clinical Director.

The Complainant submits that she is required to maintain a 1 on 1 on-call rota without sufficient on-call cover which effectively means that she is on call from 8am to 10pm, 365 days per year.

The Complainant submits that her on-call obligation has resulted in a situation where she has not been facilitated or permitted to avail of the statutory minimum annual leave entitlements.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was on notice of the time, date and location of the adjudication hearing.

The Respondent attended   the first scheduled hearing in this case but did not give any evidence as the hearing was adjourned at the request of the parties in order to afford them the opportunity to implement a settlement agreement.

The Respondent did not attend the adjudication hearing which took place on 12th December 2018.

My findings in respect of the herein complaint, therefore, are based on the uncontested evidence of the Complainant presented at the hearing on 12th December 2018 which included a copy of a signed agreement between the parties dated 3rd September 2018.

I note that the agreement between the parties contains a statement to the effect that the Complainant will be paid for work performed remotely on the same basis as is paid for consultants operating a 1:3 and 1:4 rota.

I further note that the Complainant was to provide information of remotely performed work performed since 1st December 2010 within two weeks of the agreement i.e. two weeks form 3rd September 2018 and that the Respondent accepts that there will be a degree of approximation in those calculations.   At the hearing, the Complainant submitted documentation to confirm that she had provided the required information to the Respondent within the agreed timeframe.

I note that, per the agreement, the Respondent has undertaken to pay arrears for work performed remotely on the same basis as for consultants operating the 1:3 and 1:4 rota from 1st December 2010 to date.

Based on the uncontested evidence of the Complainant, I find that this complaint is well-founded and I direct the Respondent to implement the terms of the agreement in relation payment for work performed remotely with immediate effect if they have not done so already.

The Complainant submits that due to the Respondent’s failure to provide sufficient cover, her working hours exceeded the maximum hours permitted.

The Complainant submits that she has not received a factor B payment for her onerous on-call commitment since her appointment in 2010.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was on notice of the time, date and location of the adjudication hearing.

The Respondent attended   the first scheduled hearing in this case but did not give any evidence as the hearing was adjourned at the request of the parties in order to afford them the opportunity to implement a settlement agreement.

The Respondent did not attend the adjudication hearing which took place on 12th December 2018.

My findings in respect of the herein complaint, therefore, are based on the uncontested evidence of the Complainant presented at the hearing on 12th December 2018 which included a copy of a signed agreement between the parties dated 3rd September 2018.

I note that that the agreement between the parties contains a statement to the effect that the Complainant will be paid for on-call time in accordance with the terms applicable to B factor arrangements under the 2008 Consultants Common Contract. I further note the Respondent’s commitment that arrears will be paid for the period from 1st December 2010 until the period from which payment resumed.

Based on the uncontested evidence of the Complainant, I find that this complaint is well-founded and I direct the Respondent to implement the terms of the agreement in relation to B factor arrangements with immediate effect if they have not done so already.

Implementation of settlement agreement between the parties; pension entitlements; equality; fixed term contract