Complainant

Respondent

Anonymised Parties

A Medical Lab Aide

A Public Body

Representatives

Appeared in Person

 Employee Relations Officer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031894-001

30/10/2019

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

CA-00031898-001

30/10/2019

On 30 October 2019, the Complainant, a lay litigant submitted two complaints before the WRC in relation to a change in her working conditions in her role of Med Lab Assistant. Assurances that she was covered by a letter of comfort dated March 2019 had unfolded and she sought to challenge a revised working hour of 39 pro rata from 31 October 2019 under the Terms of Employment (information) Act 1994 and the Payment of Wages Act, 1991.

The Respondent, a Public Body denied both claims and contended that they were working to preserve a legacy red circled agreement for the grade , which they could not extend to the complainant .

Both parties made oral submissions and the respondent made an extensive written submission.

The Complainant commenced work as a Med Lab Aide with the respondent Public Body on 23 April 2008 and has worked continuously. She currently works 29.6 hrs per week and is not a member of a Union. The Complainant also relies on a DSP payment.

On 30 October 2019, the complainant lodged two complaints with the WRC.

1. Penalisation under the Terms of Employment (Information) Act, 1994

2.   An unlawful deduction had occurred in her wages.

CA-00031894-001 Terms of Employment

The complainant outlined that she had applied for her position from a local newspaper which stated that the job was for 35 hours per week. She secured this job on a permanent basis and commenced work in April 2008.

The National Agreement, termed Haddington Rd resulted in an upward adjustment of 2 hrs to 37 hours per week with additional leave in 2013.

Some uncertainty had arisen early in 2019 that a cohort of the complainant’s grade, who were mostly Agency workers, on rolling contracts were being offered 39-hour contracts. The complainant understood that this did not apply to her and she was to be red circled on 37 hours (full hours for grade). she exhibited a letter dated March 27, 2019 to that end.

However, on 9 October 2019 the complainant received notification that her working hours were moving to 39 hours per week as had been agreed nationally. This placed two people outside of the red circled cohort of 4-5 others on 37 hours which was unfair. The complainant also exhibited this letter dated 8 October 2019 which confirmed that she could retain her working hours but would be paid less as she had not been in post Suring or prior to 2006, the date of Agreement.

The Complainant sought to resolve this locally and met with Human Resources as she wished to remain on 37 hours to protect her contract and its linkage to the DSP payment.

The Complainant submitted that she was left with no option outside of increasing her hours of work to 39 pro rata and she was very aggrieved to be excluded from the cohort who could retain 37 hours on a red circled basis. She offered detail that while 2 employees were affected, she had much higher service that her colleague.

The Complainant submitted that the respondent had acted arbitrarily in changing her contract without her permission and she wished to keep her working hours at 37 pro rates. She contended that she had served her employer very well and had given enough.

During her presentation, the respondent shared an update on an imminent pay increase which they said would ameliorate any risk of her DSP payment. The complainant responded by saying that was a separate matter to the case at hand.

She contended that she had been penalised by her employer for seeking to retain the terms of her employment .and remained very aggrieved to be excluded in the manner she had been excluded.

CA-00031898-002 Payment of Wages

The Complainant has submitted that the deduction in wages of €57.98 per fortnight amounted to a contravention of the Payment of Wages Act, 1991 as it was not accompanied by her express permission.

The complainant submitted that her salary was properly payable at the pre-31 October,2019 rate and she sought an order for rectification.

The Respondent is a large Public Body and has refuted both claims. The Respondent exhibited the contract of employment, signed by the complainant on 17 April, for a 35-hour week. The Complainant is currently paid at point 9 which is the highest point of her PayScale and is one of 32 MLA grade employed.

The Respondent drew attention to the clause at point 25:

Your Terms and conditions may be revised in accordance with agreements reached between the union representing your grade and the Public Body  

The Respondent outlined that that they had engaged in good faith with SIPTU to address an error regarding weekly working hours for the complainant’s grade. The respondent aware that the complainant was not a member of a Union.

Background to Medical Laboratory Assistants (MLA)

The Grade of MLA originated in Dublin Hospitals and carried a salary scale of 1-10 on the Clerical Officer Scale, 39 hours per week.

Following extensive reviews and restructuring 4 Bands of Support Services Grades emerged nationally with effect from 1 June 2005. MLA was equated with Band 2 on 39 hours per week.

The Respondent confirmed that a red circled arrangement had been put in place during 2006 where MLAs working at the hospital prior to 2006 could maintain 35 hrs working week, which then increased to 37 hours per week from July 1, 2013.

In 2018, the Respondent discovered that MLAs employed post 2006 had been calibrated for a 35/37-hour week. This reflected “an erroneous practice” of over payment and lost hours to service delivery and the respondent was statutorily obligated to recoup this loss in accordance with Regulations.

This prompted a Management/ Union engagement to address the erroneous practice on three counts. There were 14 employees affected with a potential to affect all 26 hired since April 2007.

Agreement was reached:

1 Staff who commenced MLS from 2007 are to commence working 39-hour week pro rata from 31 October 2018

2 staff could remain on hours or opt to remain on hours with a new divisor.

3 Over payment would not be pursued.

The Respondent appraised the Complainant of this development on 8 October 2019 and changes were made in her salary, her hours of work remained the same.

The respondent submitted that they were satisfied that the Management/ Union Agreement had been applied to the complainant and was for the legitimate purpose of ensuring that the nationally agreed terms and conditions of employment were applied.

They rejected that any contravention of Section 5 of the Act occurred.

CA-00031898-002 Payment of Wages

The Respondent denied the claim and exhibited a range of pay slips for the complainant which reflected that her pay had altered on 31 October 2019 by the amount of €57.98 per fortnight.

The respondent submitted that an error of computation had informed the changes in the complainant’s salary from 31 October 2019 and recounted the associated background to this development.

The respondent submitted that several MLAs inclusive of the complainant were working 37 hours per week instead of the national norm of 39 hours pro rata. The erroneous practice became the topic of Union Management discussions which resulted in a correction of the erroneous practice by means of an agreement in October 2019. The complainants pay was revised downwards as a result, but the legacy Overpayments were not recouped by agreement.

This resulted in a change in the complainant’s contract of employment in line with statutory entitlements and collective agreements.

The Respondent submitted that they have acted in accordance with the contract of employment which permits revision of terms through Union Agreement.

The Respondent submitted that the complainant had accepted the application of the Haddington Rd Agreement in 2013 which resulted in increased hours of work 35 to 37 hrs. Equally, the rates of pay have increased and decrease in line with national collective agreements and Financial Emergency Legislation. The Complainant will receive the benefit on an increased banding retrospective to September 2019.

The wages paid on October 31 and since were properly payable and no contravention of the Act has occurred.

CA-00031894-001 Terms of Employment

I have considered the facts raised by both parties in this case and I have reviewed both parties submitted papers.

It was important for me to understand the background to the evolution of the Grade of MLA up to and including the most recent elevation to Band 1 on the support services grading scheme. I am grateful to the respondent for that comprehensive background.

The complainant in the case presented very honestly and depicted a sense of exasperation at how her salary had been revised without her permission in October 2019. She had written to the respondent dated 23 October 2019 to record that she did not agree with the changes

She submitted that she had been wrongly excluded when judged against the March 27 ,2019 letter. Certainly, at first glance, I can see her point. The Complainant believed that her terms were secure and not open to arbitrary change.

She believes that she was penalised for having objected to this action by losing her 37-hour week and pay for a 39-hr week and pro rata pay.

The Respondent has rejected this submission and countered by reference to the erroneous application of 35 hrs from Day 1. The 35 hr/37 hr week was subsequently saved for those with a commencement date of 2006 by Union /Management Agreement via a legacy local agreement, but this ruled the complainant out.

The Complainant registered her objection to the change on 23 October 2019 by letter and on 31 October 2019 by email. The first manifestation of a reduction in wages was dated 31 October 2019.

The complainants line manager tried to re-arrange this time line as the complainant had not been given an opportunity to elect to increase her hours to mitigate the change, but this was not upheld. A subsequent meeting between the parties failed to resolve the issue.

Section 11 of the Employment Miscellaneous Provisions Act of 2018 inserted Penalisation clause in the Act and it is defined as:

Protection against penalisation

(1) An employer shall not penalise or threaten penalisation of a employee for —

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Act 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

The question for me to decide is whether the detriment in question submitted by the complainant, that of her deduction in wages was imposed for having committed a protected act in accordance with Section 6 C above.

The test for Penalisation was outlined in the seminal case of O Neill V Toni and Guy, Blackrock ltd [2010] ELR 1. This was a case taken under the Safety Health and Welfare at Work Act, 2005 in respect of a dismissal.

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned [detriment]”

It is clear to me that there was a lack of transparency surrounding how the complainant was “in the front row of the photo” in March 2019 and was relegated to” the back row of the photo” immediately on agreement with SIPTU on 7 October 2019. I can understand that the complainant took the exclusion personally and sought to challenge it.

On a logical front, I noted that the respondent had not hired directly to this grade 2009-2015, a period of 8 years. I can appreciate that the complainant is aggrieved at being eclipsed by a legacy agreement to which she was not a signatory or a constituent in the face of her perceived “letter of comfort.”

I appreciate that the complainant did not get an opportunity to advocate for herself between March 2019 and October 2019, but perhaps that is more of an industrial relations issue. However, it runs to the core of the case, where she expressed a clear sense of exclusion. The Respondent, for their part was actively engaged in trying to conclude a comprehensive collective agreement at the same time.

However, I am satisfied that the revision in her wages arose from a legitimate Agreement with the Union charged with responsibility for the terms and conditions for the grade. I could not establish that the complainant was penalised in relation to raising an issue regarding her terms of employment. I appreciate that the parties may have had a frank exchange of views at their face to face meeting, but the deduction had occurred at that stage and thus could not be viewed as a “causal connection “or the operative cause for the reduction.

However, I have identified that the complainant should have been informed much sooner than October 8, 2019 that the previous assurances of March 2019 had faltered for the respondent. Given that she is not a member of a Union, it is the responsibility of both parties to figure out how best to communicate these headline issues to provide for timely recourse, if necessary.

On balance this is a grade that has evolved to the highest Banding on the support services grouping. This is a tribute to all involved. The complainant is to be regraded with retrospection which will preserve her DSP payment.

I find the claim for Penalisation to be not well founded.

CA-00031898-002 Payment of Wages

I have considered the claim advanced by the complainant and the response received by the respondent.

The complainant made the argument that she was paid in accordance with her 35-hr contract from April 2008 until July 2013 when Haddington Road agreement varied the contractual hours from 35 to 37. She was not issued with a revised contract at this time and retained the 2008 version.

The Complainant pressed on with a 37hr week until on 8 October 2019, she was notified that the hourly rate for her job was to change to 39 hours from 31 October 2019 as she did not come within the terms of a red circled agreement. The Respondent submitted that they could not venture outside the collective agreement recorded on October 7, 2019.

The complainant contended that the respondent had acted outside its powers to seek to enforce an unenforceable variation in her contract and that she was entitled to be continued on a 37 hour weekly pay and retain her salary. This meant a lot to her as she reflected on her contribution to the job.

For my part, I noted that the complainant was very aggrieved at the way change was floated to her and previous assurances given to protect her position had not been honoured by the respondent.

I note that this claim was submitted on 30 October 20129 at 12.45 hrs and referred to the date of deduction as 30 October 2019. However, the pay slip for week 44 reflects the deduction took place on 31 October. Equally, the notification of impending change recorded the date of operative change as October 31, 2019.

This was accepted by both parties at hearing.

My jurisdiction in this case evolves from both S.41(6) and S 41(8) of the Workplace Relations Act 2015.I am permitted to hear this case if it has not been submitted after the expiry of 6 months beginning on the date of the contravention to which the complaint relates.

This means that the complaint must be framed in the aftermath of the allege deduction not in anticipation of that deduction. This is regrettable, but I believe that I am bound by this direction.

HSE v Mc Dermott [2014] IEHC 331

Hogan J in holding against the HSE noted that time runs not from the date of any contravention, but rather from the date of the contravention “to which the complaint relates “. In the instant case, the date of the contravention is 31 October 2019 and time runs from that date and not before.

I must conclude that I do not hold the jurisdiction to decide on this complaint as the claim is framed as an anticipatory claim.

I would like to add a rider; however, I suggest that the parties could without prejudice to eithers position and in the spirit of mutual trust and confidence consider returning to this issue in accordance with the grievance procedure which had not been exhausted prior to filing the claim.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00031894-001 Terms of Employment

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I decide in relation to the complaint in accordance with section 6 C of that Act.

I have found the claim for Penalisation to be not well founded.

CA-00031898-002 Payment of Wages

Section 6 of the Payment of Wages Act, 1991, requires that I decide in relation to the claim for properly payable wages   consisting of a grant of redress in accordance with section 5 of the 1991 Act.

I have found that I lack the jurisdiction to decide on the claim. The claim is not well founded.

Terms of Employment, Payment of Wages