Complainant

Respondent

Anonymised Parties

A hospital consultant

A hospital

Representatives

Thomas Smyth Irish Medical Organisation

Hospital Management.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00024924-001

10/01/2019

The Complainant is a hospital consultant employed by the Respondent hospital.

This complaint was received by the Workplace Relations Commission on 10/01/2019.

Background

The Complainant is employed as an Emergency Medicine Consultant in the Respondent hospital under the 2008 Consultant Contract.

Under this contract he is required to provide a 39-hour weekly commitment and additional attendance requirements, some structured and some based on the need to be called in.

As a Consultant working in Emergency Medicine there are requirements of structured attendance and a separate requirement to attend on an on-call basis. The following are the different payment arrangements and when they apply below.

On call Rules

The Consultant Contract provides for two types of payment for Consultants on call.

The first of these is a B-Factor. This is a payment which Consultants received for being on-call. This payment is paid by reference to the frequency of call and the number of call outs which occur (see table below).

The second of these C-Factor. This payment is made by reference to each call out (see table below).

Rest Days

Due to the nature of the Consultant role, Consultants are required to be available to attend in case of emergencies. This is scheduled.

Considering the nature of the on-call, and to ensure that Consultants receive appropriate Rest the Contract also provides for specific days of Rest based on the level of call.

These again are based on the level of call for Consultants who are on a level of call in excess of 1 in 5. Details of the Rest Day entitlements are set out in the Rest Day agreement of May 2014.

On site attendance rules:

Under clause 23 (f) of the Consultant Contract the following applies in relation to onsite attendance:

“Saturday, Sunday and Public Holidays:

Structured on-site attendance at weekends and on public holidays will be subject to the following premium payments:

1) Time and ½ on Saturdays

2) Double time on Sundays and Public Holidays”

This cover instances where the Consultant attends in a regular and structured fashion.

Complainant’s arrangement

The Complainant provides various levels of on-call and on-site in his role as set out below.

The Complainant is rostered to work regularly on a Saturday where he attends the Hospital for 4 – 5 hours where he attends patients and provides regular scheduled care.   This is rostered and advised to the Hospital and many of his colleagues work under similar arrangements.

Having completed his regular scheduled attendance, he then leaves the Hospital and goes on-call.   His B-Factor and C-Factor are determined by the regularity and frequency within the call.

Dispute

The issue in dispute between the parties is the treatment of the Complainant’s hours by the Respondent and the calculation of his Rest Day entitlement.

For the Saturdays, where the Complainant attends on a regular and structured basis he has been paid on a B Factor and a C Factor basis rather than at the rate of time and ¼ per hour worked.

He has raised this over a number of years and has made it clear in all of his forms that he is seeking payment for structured hours.

By paying him in this fashion, the Complainant has received a greater level of B and C Factor payment but has been underpaid in relation to his structured on-site attendance.

This has had a further impact as under the Consultant settlement, onsite attendance payments and Rest days are included in the retrospective payment element of the settlement, while B and C Factors are not included in this.

Despite raising this previously and meeting with the Respondent in late 2018 on this matter, and being advised that the Respondent would review, neither the IMO nor the Complainant have received any update on this. This has been brought into sharp focus as the Complainant is now having to consider an offer of settlement from the HSE without this being resolved.

The Complainant is asking that the Adjudicator direct that the Respondent complete a review of the hours worked by the Complainant and calculate the net payment due to him in respect of the onsite attendance, and further direct that the Respondent advise the HSE settlements team of the details of the on-site attendance, so they can reassess and correct the settlement offer to the Complainant.

In addition, the Complainant has requested that details of the calculation of his Rest Day entitlement be clarified. As provided under the Rest Day agreement Doctors working on a one in 4 such as the Complainant are entitled to a minimum level of Rest Days.

The Complainant is not clear how is entitlement being calculated and would ask the Respondent for a breakdown of the calculation of the Rest Days and provide him with the opportunity to challenge the calculation method of this where he considers that it is outside the agreed provisions.

Conclusion

We are seeking confirmation that the Complainant:

Is entitled to be paid for structured on-site attendance.

That his entitlement be assessed in line with this.

That his employer advises the HSE Consultants Settlement Team of his entitlement in order that his offer made be appropriately amended.

Will be provided with a breakdown of his Rest Day entitlement and that he be provided with the opportunity to challenge this.

Such other directions as the Adjudicator considers appropriate.

INTRODUCTION

The claimant is employed as a Consultant in Emergency Medicine in a Hospital. The source of the grievance relates to non-payment of, what they consider to be, the appropriate rate, for on-site weekend and bank holiday attendances under the terms of Consultant Contract 2008. The Claimant contends that the decision by the Respondent to treat their weekend attendances as on call (Factor C) for pay purposes has had a negative impact on the value of their compensation under the recent High Court Consultant Settlement Agreement.

Historical Context

Prior to the introduction of Consultant Contract 2008 Consultants held either a Category 1 or Category 2 contract under what was colloquially referred to as the “Buckley Contract”. Under the terms of his contract, Consultants were paid a flat rate annual allowance (B Factor) in lieu of the liability for being on-call. They were also eligible for payment on a per-call out basis, (C Factor), for the provision of on-site services during on-call periods when they, in the exercise of their professional judgement, attended on-site and performed clinical work of an urgent nature. There was no distinction drawn between weekend and week day commitments. Payments made under C Factor attracted mileage rates and travel time for each call-out episode.

A structured payment system was established for this purpose and was applied to weekend and bank holiday working arrangements for all Hospital Consultants immediately prior to the implementation of Consultant Contract 2008. An outline of the pay structure, drawn from the HSE consolidated pay scales (1st September 2019) is provided below for information:

Table 1 On-Call Pay Structure

Revised Pay Terms – Consultant Contract 2008

Consultant Contract 2008 took effect from 1st June 2008 and had the effect of significantly increasing remuneration benefits. The Claimant elected to transfer from their Buckley Contract to the new Consultant Contract and signed same on 28th November 2008.

Consultant Contract 2008 retained the historic B Factor and C Factor pay provisions referenced above.   It also made provision for phased salary increases and additional remuneration benefits which could not subsequently be honoured by the State as a consequence of the dire economic climate which prevailed. One such benefit was the introduction of enhanced overtime payments for structured on-site attendance at weekends and on public holidays. The salient provision was outlined in Section 7 (d) (ii) of the Contract and stated:

“the Consultant rostered on-call ….. may be required to provide a structured commitment on-site of up to 5 hours on a Saturday and/or 5 hours overtime on a Sunday and/or 5 hours on a public holiday.   Consultants on onerous on-call rosters shall not be expected to deliver the upper end of this requirement as determined by the Clinical Director. The Consultant’s liability for on-call outside such structured or other scheduled overtime hours will continue to apply”.

An extract from Section 23 (d) of Consultants Contract 2008 is provided below for the purpose of outlining the pay arrangements for structured weekend attendances –

“Saturday, Sunday and public holidays: structured on-site attendance at weekends and on public holidays will be subject to the following premium payments:

a) Time and ½ on Saturdays

b) Double time on Sundays and Public Holidays. Such payments will not apply on a day which the Consultant has been rostered to work as part of his/her 5/7 working week.   In such circumstances the Consultant will be eligible for premium rates in accordance with public health sector norms”.

The T+1/2 overtime rate was later adjusted to T+1/4 for all public sector staff with effect from 2013 in accordance with the terms of the Haddington Road Agreement.

Consultants who were required by their employer to attend on-site under this contractual provision were entitled to enhanced pay arrangements for their structured weekend/public holiday commitments. The emphasis on “required” is important here in the context of it having been a voluntary and established practice of the Claimant to attend on-site at weekends rather than that practice having been rostered by the Respondent.   Furthermore, the Respondent could not contractually oblige the Complainant to attend a structured basis at weekends owing to their participation on an onerous on-call rota.

Workplace Dispute

On 7th September 2009, the Claimant wrote to the CEO of the Respondent Hospital regarding their revised contractual terms under the new Consultant Contract and the failure of it to provide for/pay rostered weekend work.

The Respondent wrote to the Complainant on 28th September 2009 advising them that it had no authority to make the enhanced weekend payments. It was stated that the Department of Finance had not approved payment for rostering Consultants at weekends. The correspondence also confirmed that the Respondent had not rostered any Consultants to work weekends under the terms of the new Consultant Contract and was therefore not seeking to invoke structured weekend on-site working provisions. It was emphasised that historic pay arrangements would continue for the aforementioned reason and in the context of the difficult and challenging financial and economic challenges which the State faced on that particular time.

The Claimant cannot assert, in that context, that there was any ambiguity in relation to pay arrangements for their weekend attendances. Having provided the necessary clarification the Claimant continued to be paid C Factor, mileage and travel time for on-site weekend attendances, as had historically been the case.

As a commentary, the Respondent’s position was consistent with that adopted across the health service.   This is reflected in Sections 5 and 6 of the HSE Document “Guidance to Health Service Management on the Use of Structured Overtime” which placed an emphasis on the employer being the sole decision maker as to whether or not structured overtime commitments were required. Section 6 of the guidance document confirmed that a Consultant only became eligible for payment of structured overtime if the Employer rosters them on site at specific times in addition to the standard 39 hour week. It also stated that in the absence of such an agreement from the Employer to such structured overtime, normal on-call or emergency cover arrangements applied.

In the subsequent exchanges with the Respondent, the Claimant maintained the view that a) their working arrangements were consistent with structured on-site weekend attendances and b) the Respondent was in breach of their contract.   Records would suggest there were no further developments of note on the specific issue of structured weekend attendance thereafter until circa 2014.

Introduction of Compensatory Rest May 2014

During the course of 2014, an agreement was reached between HSE Management and the IMO under the auspices of the WRC which gave rise to the introduction of new compensatory rest provisions for Consultants participating on onerous 1:3 or 1:4 on-call rotas. The agreement made provision for payment of compensatory rest through a relatively complex on-call pay structure. As the Claimant’s weekend attendances were treated under C Factor for pay purposes, they accrued entitlements under the new compensatory rest provisions for which they would not have been eligible had they been paid as structured weekend attendances. The Claimant was paid double time for their hours of attendance at weekends in addition to C Factor rates, mileage and travel time.

Commencement of Payment for Structured Weekend Attendance in the Emergency Department

In November 2015 a colleague of the Claimant signalled their intention to submit claims for structured on-site weekend working. The Consultant in question was represented by the IMO. Following a series of engagements on the issue, agreement was reached to pay weekend and public holiday commitments, which had hitherto been paid under C Factor, as structured weekend attendance in accordance with Section 23 (d) of the Contract. The agreement, which made provision for payment of arrears to October 2012, was communicated to the relevant parties on 3rd October 2016 leading to the withdrawal of the case from the WRC.

The Claimant elected not to invoke a similar entitlement at this time. Their stated position is that they were not formally offered these terms notwithstanding the fact that they claim to have been in dispute with the Hospital on this very issue since 2008.

Consultant Settlement Agreement

The outcome of the Consultant Settlement Agreement became apparent to litigating Consultants from circa June 2018. Under its terms C Factor payments were excluded from scope with the result that the Claimant’s earnings were not factored into their settlement calculation.   Structured weekend overtime was included within the settlement calculations.

On 10th August 2018, the Claimant wrote to the Respondent in the above context. They stated that they had been in dispute with the Hospital since 2008 regarding the weekend work they performed. The Claimant further advised that the decision of the Respondent to pay them C Factor rates for weekend commitments, as opposed to structured weekend overtime rates, had negatively impacted their income which would be further exacerbated by a potential reduction in their settlement payment. The claimant estimates the underpaid differential to be in the region of €30,000.

Agreed actions arising from March 2019 WRC Meeting

Following from the WRC meeting in March 2019 there were a number of engagements with the Claimant in relation to their pay arrangements for weekend work.   A review of historic claims under C Factor rest days and compensatory rest, was undertaken from 2008 to 2019 inclusive.   The purpose of the review was to establish if there was merit in the Claimant’s assertion that they had been financially disadvantaged taking into consideration the more beneficial pay arrangement which had been afforded to them for weekend working under compensatory rest provisions since May 2014. The manner in which payments were represented on the Claimant’s payslip rendered it difficult for either party to isolate weekend days from weekdays for the purpose of reconciling payment for the gap years.

What was concluded from the review is as follows:

Payment of weekend attendances as structured weekend overtime was financially more advantageous relative to C Factor from January 2009 to April 2014 (64 months).

Payment of weekend attendances through a combination of C Factor, compensatory rest, mileage and travel time, has been financially more advantageous at an aggregate level, relative to structured weekend overtime from May 2014 to date (67 months).

Payment of weekend attendances as structured weekend overtime from January 2009 to date would have increased the value of the Complainant’s compensation under the Consultant Settlement Agreement.

Arising from the findings of the review, the Claimant was offered a compromise settlement which proposed conversion of C Factor payments to structured weekend/overtime payments from January 2016. The intended outcome was to protect the more advantageous earnings from May 2014 to December 2015 and to facilitate incorporation of structured weekend overtime within the calculation for their High Court Settlement.   The claimant rejected this proposal.

Conclusion

The prevailing economic circumstances in 2008 meant that the government, and ultimately Employers, did not have the necessary finances in place to support the associated costs of Consultant Contract 2008 which included new provisions relating to overtime for structured onsite weekend attendances. The evidence of this was manifest in the States’ inability to meet fundamental contractual pay awards which subsequently gave rise to High Court proceedings and the Consultant Settlement Agreement in 2018.

The Claimant has participated on a Consultant on-call rota which the Consultant Contract 2008 defines as onerous. As such, they were neither expected nor could they be contractually obliged by the Respondent to provide a structured commitment on site at weekends and/or public holidays under the terms of their contract. This was confirmed in unambiguous terms to the Claimant as far back as September 2009.

In the absence of agreement, the Claimant was paid C Factor for their weekend attendances.   This method of payment for weekend attendances was financially less advantageous relative to structured weekend overtime rates for the period up to April 2014. Conversely pay arrangements from May 2014 which incorporated compensatory rest, were financially more advantageous relative to structured weekend overtime. The assertion of the Claimant that the value of their settlement under the High Court action would have been more had they been paid overtime under structured weekend provisions is not in dispute. What is in dispute is the date from which the entitlement arose.

At this juncture, the Claimant is asserting a contractual right to structured weekend overtime payments which gives rise to a financial liability dating back over a decade and a cost increasing agreement prohibited under the Public Service Agreement. The Respondent disputes this claim for the following reasons:

·         It did not seek to invoke the provisions under structured on-site weekend attendances nor was the Claimant rostered for specific times by management in relation to their weekend duties.

·         It was made clear to the Claimant by the Respondent that there was no funding provision to meet associated costs of structured on site attendances.

·         The Claimant elected to continue their practice with respect to weekend attendance patterns in the knowledge that C Factor would be paid.

·         The Claimant elected to invoke entitlements under compensatory rest, mileage and travel time from 2014.

The Respondent also notes there are collective implications to this particular claim.   Without prejudice to the foregoing and the Respondent’s position, should the Claimant be successful, it can be reasonably anticipated that equivalent claims of this nature will be made within the Respondent Hospital, and other Hospital’s nationally.

The prevailing economic circumstances in 2008 meant that the government, and ultimately Employers, did not have the necessary finances in place to support the associated costs of Consultant Contract 2008 which included new provisions relating to overtime for structured onsite weekend attendances. The evidence of this was manifest in the States’ inability to meet fundamental contractual pay awards which subsequently gave rise to High Court proceedings and the Consultant Settlement Agreement in 2018.

At this particular time many public and civil servants were placed in a position which saw contractual entitlements overlooked and many suffered step backs in relation to remuneration and associated benefits.

I am unable to overlook the fact that the Complainant elected to transfer from their Buckley Contract to the new Consultant Contract and signed same on 28th November 2008 – he appears to have had a choice.

In November 2015 a colleague of the Claimant signalled their intention to submit claims for structured on-site weekend working. The Consultant in question was represented by the IMO. Following a series of engagements on the issue, agreement was reached to pay weekend and public holiday commitments, which had hitherto been paid under C Factor, as structured weekend attendance in accordance with Section 23 (d) of the Contract. The agreement, which made provision for payment of arrears to October 2012, was communicated to the relevant parties on 3rd October 2016 leading to the withdrawal of the case from the WRC.

The Claimant elected not to invoke a similar entitlement at this time. Their stated position is that they were not formally offered these terms notwithstanding the fact that they claim to have been in dispute with the Hospital on this very issue since 2008.

I find it strange that the Complainant or his union on his behalf did not invoke a similar entitlement at that time.

The Respondent has presented some valid arguments:

At this juncture, the Claimant is asserting a contractual right to structured weekend overtime payments which gives rise to a financial liability dating back over a decade and a cost increasing agreement prohibited under the Public Service Agreement. The Respondent disputes this claim for the following reasons:

·         It did not seek to invoke the provisions under structured on-site weekend attendances nor was the Claimant rostered for specific times by management in relation to their weekend duties.

·         It was made clear to the Claimant by the Respondent that there was no funding provision to meet associated costs of structured on site attendances.

·         The Claimant elected to continue their practice with respect to weekend attendance patterns in the knowledge that C Factor would be paid.

·         The Claimant elected to invoke entitlements under compensatory rest, mileage and travel time from 2014.

The Respondent also notes there are collective implications to this particular claim. Without prejudice to the foregoing and the Respondent’s position, should the Claimant be successful, it can be reasonably anticipated that equivalent claims of this nature will be made within the Respondent Hospital, and other Hospital’s nationally.

At this point my recommendation is that the Complainant accepts the compromise agreement offered by the Respondent in or around March 2019.

At this point my recommendation is that the Complainant accepts the compromise agreement offered by the Respondent in or around March 2019.

Industrial Relations Act.