ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00026990
Parties:
| Employee | Employer |
Anonymised Parties | A Nurse | A Hospital |
Representatives | Mary Rose Carroll, Irish Nurses and Midwives Organisation | Peter Flood, Ibec |
Dispute
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-00034518-001 | 07/02/2020 |
Date of Adjudication Hearing: 13/04/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the complaint dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
I held a remote hearing on 13/04/2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020 which designates the WRC as a body empowered to hold remote hearings.
Background:
The employee commenced employment on 15/01/2008. In November 2008 she realised that she was underpaid and on investigation she discovered that the service history which she submitted from her previous employer was incorrect and did not include a period of nine months service when she worked as an intern. She obtained a revised document and submitted this on 21/12/2018. The employer was not agreeable to pay any money retrospectively. The employer relies on a provision in the contract of employment that states that any claims for incremental credit much be made within six months of commencing employment. |
Summary of Employee’s Case:
The employee completed her 36-week paid internship on 10/09/2017 and qualified in October 2017. She worked in the hospital where she qualified from 19/10/2017 until 17/12/2017. She commenced employment with her current employer on 15/01/2018. In November 2018 she realised that she was being underpaid and when she queried this with the employer it was discovered that the service history from her previous employer did not include her 9 months service as an intern. This period of internship is paid and reckonable for incremental salary once she had completed 16 weeks employment on 15/02/2018. There is a relevant HSE HR Circular 005/2016 which confirms this. The employee submitted a revised service history to the employer on21/12/2018. In March 2019 she still had not received any payment and she made further contact in April. Her trade union representative contacted the employer in August 2019 seeking clarification in relation to the arrears and seeking confirmation that all reckonable service and arrears including adjusted premium pay was applied. The employer confirmed that the incremental credit was not applied retrospectively as it was beyond the six months timeframe outlined in the employee’s contract of employment. The total sum owed to the employee is €2,342. It was submitted on behalf of the employee that the employer was provided with all relevant documentation when she commenced employment. The employee was not aware that her previous employer had provided incorrect information and she was not responsible for the error. The employer was aware that she was a new graduate and therefore should be placed on the second point of the salary scale. The employer did not cross check or raise any query in relation to this anomaly. The employer accepts that the employee was placed on the incorrect point of the scale and is being penalised as a result of a clerical error made by her previous employer. It was also submitted on behalf of the employee that if the employee had been over paid for the same period then the employer would seek to recoup monies for the same period. The employee’s representative submitted that the entitlement to the incremental credit arises from HSE Circular 005/2016. This circular does not put any limit on retrospective payment of the increments which are to be applied. There were a number of previous cases cited by the employee’s representative where full retrospection was awarded. The Rights Commissioner recommendation r-120837-ir12/JT where a Tissue Viability nurse who received a specialist qualification in 2003 only discovered in 2010 that she was entitled to the allowance. The Rights Commissioner in this case awarded full retrospection. Two other cases, CD/14/425 the claimant had been carrying out a role of a higher grade without additional remuneration and the Labour Court backdated the additional remuneration to the date she became eligible. The same principle should apply in the case under adjudication. The other case r-151321-ir-14/EH was a case where the claimant was not aware that he was eligible for the grade of senior staff nurse in 2008 and in 2013 he was awarded his upgraded role with full retrospection. The employee is due €2,342 and there is a consequential effect on her premium payments. |
Summary of Employers Case:
The employer confirms that the employee commenced employment on 15/01/2018 and based on the information provided by the employee she was given two months incremental credit for previous service. The employer does not dispute that the employee is entitled to incremental service for 11 months prior service. The employer is clear that the delay in providing the proper verification for such service is the sole reason why she lost out on the payment. The employer provided a copy of the employee’s contract of employment and in relation to the section on pay the contract states: “Individual claims for incremental credit (i.e. verification of pervious relevant work experience) must be made within the first six months of employment. Claims received after six months will not be processed retrospectively.” Elsewhere in the contract it states: “I acknowledge receipt of the above terms and conditions of employment and I agree that they shall govern my employment with xxxx Hospital.” The employer only received her amended service record on 21/12/2018. The employer clarified the position for the employee’s representative on 05/09/2019 that the employee was not given the incremental credit retrospectively as it was past the 6 months’ time frame. The employee received all reckonable service in line with standard practice and is not entitled to the 9 months loss as she did not adhere to the contractual requirements. |
Findings and Conclusions:
There is agreement in relation to all the facts pertinent to this dispute. The only point of disagreement is in relation to the retrospection for the 9 months service as an intern. It is accepted that she is entitled to this incremental credit, but the employer has an express provision in the contract of employment that any individual claims including verification of previous service must be submitted within the first six months of employment. There are two unexplained elements. Firstly, the employee did not check the verification document provided by her previous employer and secondly, she did not check her salary details until November 2018 some 11 months after her employment commenced. The relevant document in this case is the employee’s contract of employment. There is no ambiguity in relation to the specific time limit for claims in relation to incremental credit. The contract of employment is a legally binding agreement which was signed by both the employer and employee. Such contracts determine the rights and duties of both parties and are a critical element in the event of any disagreement. In signing a contract of employment, the employee is providing confirmation that they have been made aware of their terms and conditions of employment. I find that the employer has adhered to their contractual provisions in relation to the claim for incremental credit and the retrospective provision of such a claim in this case. Accordingly, I am recommending that the dispute is not well founded. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that this dispute is not well founded. |
Dated: 20th July 2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Incremental credit. Retrospective payment. |