Complainant

Respondent

Anonymised Parties

A Nurse

A Health Care provider

Representatives

Irish Nurses and Midwives Organisation

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-00031429-001

08/10/2019

The Complainant is a substantive CNM 1. Following completion of training on 16 May 2016 she commenced working in a new post, which was graded at CNM 2 grade by her employer, for which she received a Temporary Higher Allowance (THA) to CNM 2 salary (€182.26 per fortnight). She said that on 25 April 2019, she noted the removal of this THA from her salary with effect from 11 April 2019, as payment is made 11 days in arrears. The Complainant said that she received no formal notice of the deduction from her salary and attempts by herself and her Union have failed to have this THA re-instated to her retrospective to 11 April 2019.

The Complainant claims that she was correctly in receipt of a Temporary Higher Appointment (THA) payment to CNM2 grade from 16 May 2016 to 11 April 2019 when her employer unilaterally ceased the payment without notice. The Complainant is seeking repayment of all the monies owed to her and is seeking compensation for the illegal deduction of her wages.

The Complainant claims that her substantive post is that of CNM1 grade and she commenced employment as Acting CNM2 on 16 May 2016 at Location A. She said that despite that the post was advertised for 24 hours per week she was working 39 hours per week and still does so to date. Her substantive CNM1 post was filled while she was taking up the CNM2 position. It was noted in February 2017 that she was not in receipt of the THA payment and her trade union sought that from the Respondent and the back payment retrospectively. That was corrected and all monies owed were paid.

The Complainant said that as of 25 April 2019 she noticed on her payslip that the THA payment was not paid, that her salary had reverted back to her CMN1 salary only. She claims that she received no prior warning that the payment would be stopped, and she raised a question with Management as to why, and the matter has not been resolved.

The Complainant detailed the many interactions that she and her trade union had with management to have this matter resolved. However, she continues to undertake the duties of a CNM2 grade, but she has not been paid the appropriate THA. The Complainant said that she has been repeatedly asked by her director of services to sign a form to allow her to be paid the THA pay to CNM2 grade for only 19.5 hours despite the fact that she works full time.

The Complainant said that the Respondent has said that she should have only been working in the CNM2 grade post for 24 hours a week in Location A and the remaining 15 hours of that CNM2 grade post should have been worked in Location B. Therefore, the Complainant should haven paid her remaining 15 Hours at the CNM1 grade rate. Notwithstanding, the Complainant contends that she should be paid at the very least the 24 hours per week and not now the 19.5 hours per week.

The Complainant said that the deduction made from her wages falls foul of section 5(1) of the Payment of Wages Act 1991 and must be compensated.

The Respondent accepts that the Complainant is employed with it and her substantive post is that of

CNM1 grade and she commenced employment as Acting CNM2 on 16 May 2016 at Location A. This position was for an initial period of 6 months and for 24 hours per week. This was to accommodate the current post holder’s secondment for three days per week to another project. The role was initially for 24 hours per week. The remaining 15 hours in the Complainant’s working week are divided between duties among other named services which are at the Complainant’s substantive CNM1 grade.

The Respondent said that on 4 September 2017 the remaining 15 hours for the overall 1 wholetime equivalent (WTE) nurse position was allotted to a different location, Location B. This was to enable a continuation of the services provided at Location B following on from the departure of the permanent post holder from that location. In early 2019 a review of this shared post was undertaken by management, following on from the expiry of the THA approval, with a view to restructuring the allocation of the service between the two sites.

The Respondent said that during this review an overpayment totalling 15 hours per week paid at the higher CNM2 salary was identified in respect of the Complainant. The THA approval was paused which resulted in the Complainant’s pay reverting to that of her substantive grade of CNM1. The review also highlighted that the second person sharing the post with the Complainant was not in receipt of the higher rate of pay as the Complainant was wrongly in receipt of the entire funding allocation for the post. When the review concluded the THA payment was reinstated to 19.5hours per week at CNM2 level for the post in Location A, which is in line with the current pay bill approval that is in place for this post. The Respondent said that it has not progressed the recoupment of the overpayment while the WRC process is ongoing.

The 50/50 split for each site was made with a view to equity and fairness to both nurses as temporary assignments can only be sanctioned for posts of 0.5 WTE or above for remuneration purposes. The Respondent said its Policy on Acting-Up in a Higher Capacity permits reviews of acting-up arrangements. In this case the service hours were realigned and split equally between both Locations.

The Respondent said the THA to CNM2 salary was stopped on 8 April 2019. However, the necessary paperwork was submitted in December 2019 for continuation of the THA allowance at 19.5 hours per week and backdated to 09 April 2019. A funding request was recently made seeking approval for an additional 19.5 hours for the Complainants post (.5WTE). This was declined under the current affordability controls. Without said approval local management are unable to pay in excess of the current level of approval received. The Respondent acknowledged that the Complainant continues to work 24 hours per week in this service and continued efforts will be made to seek approval for the additional hours.

The two CNM2 posts, for both locations, were submitted for permanent filling in January 2020 at the approved 19.5 hrs per week for each site. This total’s 1 WTE overall (39hrs). This is currently ready for advertising.

The Respondent said that this complaint has been brought under Section 6 of the Payment of Wages Act 1991. It pointed to documentary evidence that the necessary paperwork has been submitted to reinstate the Complainant’s THA at 19.5hrs per week which will be backdated to 09 April 2019. The Respondent said that the Complainants role is not a 39 hour per week CNM2 position. It is recognised that there is a service anomaly at present of 4.5 hours per week since April 2019. Continued efforts will be made to seek approval for these additional hours to fill the deficit or to realign the clinic times to reflect the approved 19.5 hours. The Respondent said that no unlawful deduction was made from the Complainant as defined in the Payment of Wages Act.

The Relevant Law

The Complainant submitted this complaint under the Payment of Wages Act 1991. As I had indicated to the parties at the hearing much of the submissions made to me at the hearing related to a number of other issues relating to different ongoing matters, in particular industrial relation matters. However, I am satisfied that those matters are not before me for consideration as my jurisdiction is limited to the matters under the Payment of Wages Act 1991.

The instant claim was submitted to the Director General of the Workplace Relations Commission on 8 October 2019 and therefore, only contraventions of the Payment of Wages Act which may have occurred in the six-months preceding the referral, i.e. the period from 9 April 2019 to 8 October 2019 are cognisable for the purpose of obtaining redress.

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

5.— (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.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

or

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001(as amended by the Local Government Reform Act 2014), amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee’s having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant was successful at interview for a temporary post and began working in the CNM2 role in May 2016. The position was advertised for 24 hours per week at CNM2 and thus the remaining 15 hours per week were to be paid at CNM1. The Respondent said that it erroneously paid her full 39 hours at CNM2. I note that it has not sought reimbursement for the alleged overpayment from her. I note the Complainant said that she works full time in her role and therefore deems that the 39 hours was correctly paid at the CNM2 rate. The Respondent said that she carried out other duties in her current role which are at CNM1 grade.

I note the decision of the Labour Court has held in the case of Foroige v Kieran O’Connell [PWD 178] that: “In Dunnes Stores (Cornels court) v Lacey and Nuala O’Brien [2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant ….. Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction”.

Therefore, the first issue that I must decide is whether the claimed unlawful deduction of wages in respect of THA during the cognisable period was in fact properly payable to the Complainant.

It was common case that the Complainant’s substantive post is CNM1 and that she was getting paid the THA to the CNM2 salary at €182.26 per fortnight on the basis of 39 hours per week. I note the evidence adduced that she should ‘only’ have being paid at the CNM2 grade for 24 hours and at the CNM1 rate for 15 hours per week.

The Complainant still holds the same post during the cognisable period with the same arrangement. She has not reverted back to her duties under the CNM1 post and the status quo remains the same. I note that the Respondent noted the overpayment and sought to correct that, and sought approval for the new arrangement under a 19.5 hours CNM2 post as of December 2019. However, it decided to stop the THA payment to the Complainant as of 11 April 2019 and reverting her back to her CNM1 pay scale, although she remained in the same temporary post and CNM2 duties for, at least, some of her week – it’s debatable if that is 39 hours as suggested by the Complainant or 24 hours as suggested by the Respondent.

In the circumstances, I find that during the cognisable period the Complainant is entitled to the terms of the original contract with her employer for 24 hours per week at the CNM2 grade, and not for 39 hours as she contends, nor CNM1 grade as the Respondent reduced her payment to. Accordingly, I am satisfied that figure is the amount that is “properly payable” under the terms of her contract of employment and the difference between that and the CNM1 grade for the 6 months period is outstanding and she is entitled to recover under the Payment of Wages Act.

As mentioned above, all other matters raised by the parties are not within the jurisdiction of the WRC in the within case.

The Complaint is well founded. The Respondent shall pay the Complainant the appropriate THA for a 24 hours per week at the CNM2 grade and 15 hours per week at CNM1 grade for the 11 April 2019 until 8 October 2019.