Complainant

Respondent

Anonymised Parties

A Medical 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-00017759-001

05/03/2018

The respondent is a private hospital and the complainant commenced working there as a Resident Medical Officer (RMO) in February 2007. She took up a permanent position as an RMO in January 2013.

The complainant was absent from work due to illness on Saturday, September 2nd 2017, following which she was removed from the Saturday roster. Her union claims that her weekday shifts were also reduced and she is seeking payment for 14 Saturday shifts and three weekday shifts from September 2017 until the end of March 2018.

Background to this Complaint

Before the issues that led to the complainant’s reduction in hours, she worked a bi-weekly schedule as follows:

Week 1: Tuesday 5.00pm to Wednesday 7.00am and Thursday 5.00pm to Friday 7.00am

Week 2: Tuesday 5.00pm to Wednesday 7.00am and Saturday 9.00am to Sunday 9.00am

In September 2017, this roster was changed in the form of a censure for being absent; however, the arrangement has been reinstated since April 2018.

The complainant is paid €50 per hour for working on weekdays, €60 per hour for Saturdays and €67 per hour for working on Sundays. At the hearing, the complainant said that the premium rates for Saturdays and Sundays are an important part of her income.

Absence from Work in September 2017

The complainant was scheduled to work on Saturday, September 2nd, but she became acutely ill with gastroenteritis on the evening before her shift and she was unable to come to work. She notified the night supervisor 11 hours before she was due to start her shift.   The following Thursday, September 7th, the complainant received a letter from the head of HR inviting her to attend a meeting the following day. The purpose of the meeting was to discuss her absence the previous Saturday.   The meeting was to be attended by the head of HR, the director of clinical governance and the head of nursing and clinical services. The complainant was invited to bring a colleague with her to the meeting.   Because she received the letter at the end of her shift on September 7th, she was unable to find someone to accompany her and she decided to attend the meeting on her own.

At the meeting on September 8th, the complainant was presented with a print-out of her attendance over the previous 12 months. Several absences and requests for changes to her roster were identified and also, the fact that she had been absent on three Saturdays.   She was informed that she would not be allowed to work the Saturday roster and that her attendance would be monitored. If she was going to be absent, the complainant was instructed to report to the head of nursing and clinical services. She was also informed that she could only advise of her availability on the roster for one month in advance, rather than three months, which is the general policy.

By letter dated September 11th, the complainant was informed of the outcome of the meeting on September 8th. The complainant said that she received this letter by e-mail on Saturday, September 16th, when she arrived for work and logged on to her work e-mail.   On that day, when she arrived to start work, she was met by a locum doctor who had been called in to work her shift. She also discovered that she had been removed from the Saturday shift up to the end of December 2017.

On behalf of the complainant, the IMO wrote to the hospital’s medical director to seek a meeting to discuss what they considered to be the precipitous and unfair treatment of the complainant by the managers who convened the meeting on September 8th. The head of HR replied to this letter with an offer to meet. He confirmed that the outcomes from the September 8th meeting were decided in accordance with the hospital’s absence management policy and not the disciplinary policy. Because the managers who attended the meeting on September 8th were also to attend the meeting with the second meeting, the IMO declined the offer and requested a meeting with the medical director or the CEO. Eventually, on March 12th 2018, a meeting took place, following which the complainant was reinstated on the Saturday roster with effect from April 2018.

The Attendance Management Process

The respondent’s absence management policy provides that, where an employee is absent the department head or a clinical nurse manager will discuss the problem and set out how the situation is to improve. This is the first stage in the absence management process, and, if the attendance does not improve, the next stage involves a meeting with someone from the HR department and a possible disciplinary sanction.

At the hearing of this complaint, Mr Smyth said that, prior to the meeting of September 8th, there was no discussion between the complainant and her manager about her attendance. She was required to attend the meeting with practically no notice and no opportunity to be represented. She was then instructed to “remove yourself” from the Saturday shift. On September 16th, when she arrived for work, the complainant found that she had been replaced by a locum.

Mr Smyth said that the hospital must put in place safeguards to cover absences so that doctors who find themselves unable to come to work because of illness do not suffer the severe condemnation suffered by the complainant. Mr Smyth submitted that this a management failing, but the complainant was sanctioned.

The complainant’s case is that her removal from the Saturday roster from September 2017 to April 2018 was a sanction that is not provided for in the first stage of the attendance management process.

Complaint under the Payment of Wages Act 1991

The complainant’s submission notes that in accordance with section 5 of the Payment of Wages Act, deductions from wages can only be made in accordance with the Act, and any deduction outside of these provisions is in effect, an illegal deduction. On behalf of the complainant, Mr Smyth referred to the High Court case of Dunnes Stores (Cornelscourt) Limited trading as Dunnes Stores and Margaret Lacey and Nuala O’Brien [2005] IEHC 417. In considering whether a deduction has been made the Court considered the definition of wages, and decided that a deduction had taken place.

Conclusion

The complainant’s roster was for 28 hours and 38 hours in alternative weeks. Her case is, that by failing to roster her and pay her for the hours she was entitled to work, there has been a breach of section 5 of the Payment of Wages Act 1991.

Background

The respondent hospital employs approximately 12 part-time and full-time resident medical officers who cover all wards across the hospital seven days a week throughout the year. The level of cover depends on operational requirements, with less RMOs rostered at night compared to daytime and with only one rostered on Saturdays and Sundays.

The complainant’s contract of employment provides that she is contracted to work for 41 core working hours per week. In the respondent’s submission, it was stated that the complainant does not work 41 hours per week but that the wholetime equivalent hours for an RMO is 41 hours. All staff, especially those in senior positions, are expected to demonstrate flexibility and a willingness to respond to the demands of the hospital.

While RMOs are invited to indicate what shifts they want to work, no one is entitled to a particular shift, although the HR department generally tries to accommodate preferences.   Prior to September 2017, the complainants’ request to work a Saturday shift was not always accommodated. To ensure patient safety and the efficient operation of the hospital, RMOs who are rostered for a shift are expected to work that shift. In the event that they will be absent, a locum must be contacted to provide cover at short notice. Finding cover for a Saturday / Sunday shift is particularly difficult, as the shift runs for 24 hours. The failure by an RMO to attend on a Saturday / Sunday presents significant challenges to the hospital because there is only one RMO rostered over the weekend. If, at short notice, the RMO is absent, and if a locum can’t be allocated, the hospital is left entirely without RMO cover, and this has significant implications for patient safety and hospital operations.

At the hearing, the head of HR said that due to a number of absences and the risk of having no cover on Saturdays, he started to contact the complainant on Fridays, to ensure that she would be at work on Saturday. He said that the uncertainty around her absence was difficult to manage, and that it is not always possible to find a locum at short notice.

Absence from Work in September 2017

The complainant was rostered to work on Saturday 2nd September from 9.00am until Sunday at 9.00am, but she phoned on Friday at 10.00pm to say that she was ill and that she wouldn’t be in. The hospital couldn’t get locum cover for the Saturday shift with the result that there was no RMO on duty from 10.00am until 9.00pm on Saturday. The complainant didn’t answer calls from nursing staff while she was out sick. In their submission, the management side said that this was the fourth Saturday and the third in less than six months that the complainant had cancelled a Saturday shift at short notice. Over the previous 12 months, the complainant cancelled or swapped 20 shifts at short notice, but the failure to turn up for a Saturday shift causes the most difficulties from an operational and safety perspective.

At the meeting on September 8th, details of which were set out in the previous section, the complainant was told that she was excluded from Saturday shifts for six months. She was free to take up other shifts during the week. The management’s submission states that this restriction to weekday working was not intended as a sanction, but was an operational response to deal with the difficulties presented by the complainant’s non-attendance on four Saturdays. The six months expired at the end of March 2018 and the complainant was permitted to take up weekend rostering from April 1st.

On behalf of the hospital, Ms Galbraith said that the complainant has no entitlement to work any particular shift or any number of shifts. For her part, the complainant was not required to commit to a shift and she had the flexibility to swap and cancel pre-arranged shifts to suit her personal circumstances.

Complaint under the Payment of Wages Act 1991

To be in breach of section 5 of the Payment of Wages Act, Ms Galbraith said that it must be demonstrated that the amount of wages paid to an employee is less than the amount “properly payable” to them. In this regard, Ms Galbraith referred to the decision of the adjudicator in the case of A Care Assistant and a Section 38 Care Provider, ADJ-00013272. The complainant in this case worked a Sunday roster from 2003 until 2017. His employer changed the roster so that the complainant started work at 11.00am instead of 9.00am on Sundays, with the result that he lost two hours of double time pay. Also, instead of three care assistants being rostered on Sundays, from a certain date, only two staff were rostered. This resulted in a further reduction in Sunday earnings. Finding that the complainant in this case had no contractual entitlement to Sunday work, the adjudicator decided that, when the roster was changed, the lost hours were not properly payable and the complaint was not upheld.

It is the respondent’s case that the complainant’s circumstances are similar to that of the complainant in ADJ-00013272, as she has no contractual entitlement to any number of Saturday shifts. In accordance with her contract, it was open to the complainant to work any number of hours during the week on other shifts.

Conclusion

The respondent’s submission concludes by stating that the complainant was paid for all the hours she worked between September 2017 and April 2018 and there has been no deduction from her wages that could be classified as a breach of section 5 of the Payment of Wages Act.

The Relevant Law

The complainant submitted this complaint under the Payment of Wages Act 1991. Section 1 of the Act sets out a definition of Wages:

“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 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 of the Act addresses the issue of deductions from wages:

(1) 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), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

Subsections 3, 4, 5 and 6 are not relevant to the complaint under consideration here.

Has the Complainant Suffered a Deduction from her Wages?

I have examined the section above from the Payment of Wages Act in line with the precedents submitted by the IMO and the respondent. The “Dunnes Stores” case submitted by the IMO is different from the case under consideration here, because the complainants worked for the hours that they alleged they were not paid the correct amount as a service allowance. It is my view that the fact that the complainant was not paid for working the Saturday / Sunday shift from October 2017 until April 2018, with the consequent effect on her salary, cannot be considered as a deduction from her wages.   I have reached this conclusion because the complainant did not work the disputed shifts, and therefore no wages were due to her. As no wages were due, a deduction from her wages cannot have occurred.

The Attendance Management Policy

There was some dispute at the hearing about whether the decision to remove the complainant from the weekend roster was a disciplinary sanction or a decision under the attendance management procedure. The respondent stated that the decision was taken under the attendance management procedure. A copy of the procedure was submitted in evidence by the IMO and section 5.7 sets out an “Informal Process” relating to absence problems which provides as follows:

Every absence from work causes difficulty for the department and so, as part of normal staff supervision and return to work interviews, the manager will discuss the reasons for absence and ways to improve attendance will be explored. The staff member is informed that they have an unacceptable attendance record and that this record must improve. An informal warning will be issued to the staff member at this point by the HOD / CNM and this informal warning will stay on their record for three months.   Any further absences in this period may then result in formal disciplinary action which could ultimately lead to dismissal.

From the evidence of both sides at the hearing of this complaint, it seems to me that no informal intervention occurred that could have addressed the complainant’s attendance problem. An informal warning, as set out in the section quoted above, may have been sufficient to address her absence and may have eliminated the need to exclude her from weekend working. It seems that the meeting on September 8th 2017 was the first time that the complainant was confronted with the problem of her attendance. It is my view that the outcome from this meeting was too severe and should have been preceded by an informal warning.

Conclusion

This is a complaint about an employee-relations matter rather than a breach of the Payment of Wages Act. I have concluded that, by removing her from the weekend roster between September 2017 and March 2018, the respondent did not breach section 5 of the Payment of Wages Act 1991. It follows therefore, that this complaint is not upheld.

Having concluded that the respondent’s conduct in respect of this complainant was not a breach of the Payment of Wages Act 1991, I decide that her complaint is not upheld.

Deduction from wages