Worker

Employer

Anonymised Parties

A Paramedic Supervisor

Health Service Provider

Representatives

SIPTU

self

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028607-001

22/05/2019

The Worker claims that she has not been paid the correct amount in her remuneration despite having raised this issue on several occasions.

Supplemental submissions were received from both parties post the hearing, the latest on 21^st October 2019.

The Worker commenced her employment with the Employer on 18^th March 1998. In that period she was moved to 2 different locations. She remained being paid through a named regional payroll.
In or around December 2015 the Worker was in negotiations with the Employer in relation to her options for redeployment. It was agreed that the Worker would work in a named location in the Intermediate Care Service (Patient Transport) as this role would allow her to continue to work her shift work and attract a shift allowance. Again, through this time the Worker was paid through the same named regional payroll.

The Worker would fill in a pay sheet on a fortnightly basis, send it to her Line Manager and also to the Operations Performance Manager for sign off. This would then be sent to the Payroll Centre for payment.

However, at the end of January 2018, the Worker noticed discrepancies in her remuneration. Initially, she thought this was a result of a backlog from the Christmas period. The discrepancies then became a regular occurrence. Sometimes the payments were two weeks late or indeed they were not paid at all. The Worker always submitted her pay sheets on time.

The Worker contacted her payroll office locally to try to establish what the issue was, but to no avail.

On 22^nd August 2018, the Worker emailed AB of the Employer and the Operations Performance Manager (OPM) in respect of the non-payment of her overtime. Overtime is claimed at double time. She sent emails on several occasions, but she did not receive a response.

On 30^th August 2018, the Worker sent a further email to AB and OPM. On 18^th September 2018 she resent the above emails and queried if she should go through a different channel. No response was received to any of these emails.

On 2^nd October 2018, the Worker raised a grievance as she was no further along with the issue and was advised by her Line Manager (LM) at that time to refer a case to the WRC.

On 19^th November 2018, the Worker emailed her LM who was the Acting Operations Manager at the time and stated that, as he had not been successful in getting any information on the issue it should be progressed to the next stage. LM verbally advised the Worker that she should refer the matter to the WRC as it relates to non-payment of wages owed.

The Worker confirmed that she had claimed for 294 hours overtime at double time and has only been paid for 253.5 hours. She is also owed 1.5 hour at time and ¼ and 24 hours premium hours for Sunday and public holidays.

UNION ARGUMENT:

SIPTU argues that the Worker has not received remuneration in respect of some of her overtime from 7^th January 2018 up to the 9^th December 2018.

Despite many attempts on her behalf to have the matter resolved no action was taken. The Employer has failed or refused to address this matter. This has caused the Worker stress and upset.

SIPTU requests that the complaint is declared well founded, that the Worker is paid the monies due and that she is awarded a compensation.

In response to the Employer’s claim that the cited Labour Court recommendation applies to the Worker and it does not provide for a protection of overtime rates following redeployment, the Worker argued that the new overtime rates apply to new entrants only. She noted that in the location she is based, there are three other staff members employed in the same position and they are in receipt of double time. The Workers argues that up to January 2018 she was also paid double time. The issue of non-payment arose between January 2018 and December 2018 but currently her overtime is again paid at the rate of double time.

The Worker noted that she would consider accepting the new arrangement in terms of overtime if it was to be implemented going forward and across the board. However, she feels that she is the only person who suffers loss at this stage as the other three staff are paid double time.

The Employer submits that the Worker was employed in a named location in an Intermediate Care (ICO) role, having previously worked in other regions and also having been redeployed from a Control Post, following the reconfiguration of the Ambulance Control under the recommendation of the Labour Court (details provided). This movement and redeployment has had the effect of the Worker also moving payroll.

An issue has arisen with the Worker claiming that she had not been paid correctly based on time sheet returns, in particular regarding premia payments.

Unfortunately, due to movement of operational areas and payroll, the issue was made more complex and falling between two areas. However, since the WRC referral, the Employer are reviewing information supplied by the Worker with a view to resolution.

The Employer argues that, following recent engagement in September, the Employer confirmed to SIPTU and the Worker that it is committed to ensuring that the Worker is paid any monies due based on information supplied by the Worker.

While currently under review by the current regional payroll of the Employer, the previous regional payroll office has confirmed that it has paid monies owed, something complicated by changing payroll whereby the Employer suggests that more time is required by the Employer to ensure all items are resolved regarding pay returns.

As part of the recent engagement one issue of difference has, however, risen. This relates to the rate of overtime for the ICO staff, namely the rate for rest day working at double time is not applicable to ICO staff, who are paid as per the Employer terms and conditions for support staff as set out in the most recent agreement (i.e. double time applies only to Sunday, public holidays and nights).

The Employer notes correspondence from April 2015 which shows the national position on the ICO overtime, namely the rest day – double time overtime arrangement does not apply.

The Worker is an ex-controller, redeployed under the recommendation of the Labour Court. She is, based on recent engagement, of the view that old terms and conditions still apply in her new ICO role. However, the Employer is clear that the Labour Court recommendation only allowed staff redeploying maintain their salary but no other guarantees exist and the ICO terms and conditions apply. In this determination the Court communicated that while pay rates are protected, shift patterns or earning or other variable payments are not.

Summary

Unfortunately, delays occurred in commencing engagement as the issue referred to the WRC was between two operational areas of the Employer. However, after commencing engagement in September, as committed, the Employer shall review all payroll documentation submitted to ensure all payments are made. In committing to make all payment, the Employer must note that premia payments can only occur as per the national terms and condition, in line with the Worker’s current role.

The Labour Court recommendation guarantees a basic rate of pay of past control role. However, this relates solely to basic pay and cannot be relied upon to pay other standard terms and conditions, consistent with the Employer central payroll for the ICO staff.

I have carefully considered the written and oral submissions made by the parties in relation to this dispute.

The dispute in the present case relates to a claim by the Worker that she has not been paid the correct remuneration. It appears that in early 2018 an issue arose with the Worker not receiving the payments as per the pay sheets submitted.  Subsequently, 253.5 hours out of 294 of overtime hours claimed between January and December 2018 were paid back to the Worker. While the best part of the monies due was paid to the Worker, the issue of an outstanding payment in respect of 40.5 hours at double time, 1.5 hour at time and ¼ and 24 hours premium hours for Sunday and public holidays remains. The Employer did not object to the two latter payments. However, the Employer argued that the Worker has no entitlement to double time in respect of overtime and instead time and ¼ should be paid.

The Worker insisted that at no stage prior to or after the redeployment was she informed that there are any changes in respect of the premium for overtime. Regrettably, the Employer was unable to clarify if the Employer’s position in respect of overtime was conveyed to the Worker at any stage or what was the rate of overtime applicable to other staff members employed in analogous positions.

The Employer acknowledged that the overtime matter must be examined and addressed collectively to ensure it is applied consistently across the board. The Employer noted that it is the Employer’s understanding that the matter of overtime rates has now been referred back to the Labour Court.

Having considered the matter, I find it regrettable that the Employer was not in a position to resolve the matter at an earlier stage. I find that the time taken to address the matter is unreasonable and unfair. However, I note the commitment given by the Employer at the adjudication hearing to examine and resolve the matter at the earliest opportunity.

Section 13(2) of the Industrial Relations Act 1969 provides a statutory restriction on the types of cases a Rights Commissioner (now an Adjudication Officer) may hear. They may not investigate disputes connected with rates of pay, hours or times of work or annual holidays of a body of workers.
Section 13 (2) of the Act provides:-

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

I recognise that the outcome of within dispute has far-reaching implications for a broad cohort of staff in a similar situation.  As such, it is my view that the dispute is not appropriate for adjudication. As the payment of the overtime has collective implications, I do not consider it appropriate to recommend in favour of the Worker outside of the collective process.

Having considered the submissions of both parties and for the reasons stated, I recommend that Employer examines the Worker’s outstanding entitlements and discharges any payments due to her within 6 weeks from the date of this recommendation.

For the avoidance of doubt, I confirm that this recommendation is particular to the unique facts and circumstances of the instant case and that it cannot be quoted or used by either party or any other party in any other case.

Overtime – outstanding payment