Complainant

Respondent

Anonymised Parties

A Chef

A Hospital

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024133-001

14/12/2018

The complainant outlined that he is a longstanding and current employee of the respondent. He worked 11 days in 14 and had three days off. There was a local agreement in 2006/2007 where supervisors forwent a pay rise and agreed to work 10 days in 14. After consultation with his then manager, the complainant was included in the 10/14 arrangement. The complainant outlined that new management started in winter 2017 and introduced changes in 2018. The respondent then said that a new payroll system picked up the “error” of triple pay being paid on a Sunday.

The complainant outlined that the 10/14 arrangement included all catering supervisors and there are five or six staff still working there. He submitted that the local agreement was an implied term in his contact of employment and pointed out that these payments had been made for over 10 years.

The complainant said that his then line manager committed that he and other colleagues would get an extra paid day off before they worked their rostered weekend. The complainant had sought to be included in this arrangement in 2006. He said that their rosters were put up on a board and this referred the additional day off. The then line manager told the complainant that the respondent had agreed to this arrangement, but the respondent never wrote to confirm it.

The complainant outlined that the respondent approached him about the triple pay error for Sundays and how they would address this. They met locally and the complainant produced documents regarding the longstanding agreement. This came up at a supervisors meeting as AOB. There have been other line managers, who oversaw this custom and practice and this was never identified this as an issue. The complainant outlined that the first deduction was made in September 2018 to his premium pay due for August. This is different to normal pay. The complainant says he continues to work 10/14 but has incurred loss of earnings, for which he seeks redress pursuant to the Payment of Wages Act.

In questioning, the complainant accepted that the Labour Court had recommended pay parity with the Croke Park and Haddington Road agreements and that there were negotiations with the union on this pay issue.

In closing, the complainant submitted that it was extraordinary that a mistake is uncovered after a decade of being in place. Pay roll was signed off by management during this time. While the local agreement was not written down, its existence is supported by the oral and written evidence, including from a line manager. It was inconceivable that the respondent did not challenge this issue before. The complainant said that he always checked that he was properly paid his hours, including Sundays. Pay for Sundays was never recorded as triple pay and this is a smokescreen.

The respondent submitted that the complainant is “Chef grade 1” per the HSE pay scale. When introducing new payroll software, it identified that four staff were receiving triple pay on Sundays and public holidays. It ceased making the additional payments in September 2018.

The complainant can be rostered over 7 days and will work up to 39 hours. The complainant is entitled to single time extra for each hour worked on Sundays and public holidays. This is in line with the HSE pay grades, which also provide for single time extra. In error, the complainant and several colleagues were paid double pay in addition to their basic pay for Sundays and public holidays. This was the payment of triple pay. It stated that double time was payable for overtime on a Sunday or where the public holiday fell on a Sunday.

The respondent stated that the pay slips set out basic pay for that month and the premium payments due for the previous month. It submitted that even if there was a local agreement, this was done away with by Haddington Road. It submitted that there was no deduction in this case; the respondent had rectified the incorrect calculation of pay due on Sundays and public holidays. It submitted that it was not credible that there are four employees who have additional 35 days leave to everyone else in the healthcare sector.

This adjudication related to wages due to the complainant on the 29th September 2018. It does not relate to any previous payment or alleged overpayment.

The complainant states that an unlawful deduction was made when certain monies were not paid to him. The respondent states that there was a longstanding error in calculating premium hours due, but that the complainant is now paid in line with his contract.

Having considered the evidence and submissions of the parties, I find that the complaint pursuant to the Payment of Wages Act is not well founded. It is clear that the respondent made additional payments for many years. It is true that the respondent had a process of verification in advance of paying premium pay (so it was paid later than basic pay). Despite this, the respondent made what it describes as the error of triple pay on a Sunday or public holiday.

I find that any “local agreement” to pay additional hours in advance of Sundays and public holidays worked by the complainant and others could not have bound the respondent. While I accept that the complainant acted in good faith, he has not established that the additional pay was a contractual entitlement or in line with the relevant HSE Grade. It follows that the additional hours were not properly payable to the complainant. As the additional hours were not properly payable, there is no contravention of the Payment of Wages Act when the respondent ceased to pay them.

CA-00024133-001

I find that this complaint pursuant to the Payment of Wages Act is not well founded.

Payment of Wages Act

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