Complainant

Respondent

Parties

Dermot  Dalton

HSE  

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-00034693-001

17/02/2020

The complainant is a pharmacist and has worked for respondent for fifteen years.

He was recruited on the grade of sessional pharmacist and although no agreed written contract of  employment has ever been signed, there have been terms and conditions of employment well-established by custom and practice.

Other than Sunday premium payments, all hours worked are paid at a flat rate and no overtime premium applies for this grade. Since 2005 he has been regularly rostered to work weekends and until November 2nd, 2019 has always been paid the same number of hours for this work.

In October 2019, the respondent informed staff working in his location that from Saturday 2nd November 2019 opening hours were to be reduced by one hour on both Saturdays and Sundays (the clinic formerly opened between 10am and 1pm on Saturdays and Sundays) but they had unilaterally decided to reduce this to 10am to 12pm.

The complainant wrote to the respondent management stating that this decision resulted in a loss of hours that were not overtime hours and thus were outside the scope of the Haddington Road Agreement or any other collective agreement.

In addition, he stated that any change in his contracted hours made without his formal agreement would a breach of contract.

Finally, he stated that he would make no change to how he claimed payment for weekends.

The respondent confirmed that “claims can only be paid in line with agreed opening times”.

Since November 2nd, 2019 He has continued to claim as previously for weekend work.

However, for each weekend worked, three hours have been deducted from his pay. This forms the basis for the complaint as he says this deduction is unlawful.

The complainant has submitted a complaint under section 6 of the Payment of Wages Act, 1991 in respect of an alleged loss of earnings.

This arose from a review of weekend services in October 2019 in the service in which he works

It is not therefore a deduction from salary and the Adjudicator is requested to find that there is no valid claim under section 6 of the Payment of Wages Act,

The background is that a review was conducted and concluded in respect of weekend services in view of on-going difficulties ensuring a safe level of staffing in all locations at weekends.

The sessions in respect of the weekend hours in the Centre in question were reduced for reasons stated & service requirements.

Regular rostered weekend sessions are not part of the complainant’s terms and conditions.

Service requirements determine what sessions are required and are not fixed indefinitely; they are subject to change.

It is noted that the complainant was regularly rostered to the weekend clinic in the Centre in question the service requirement changed so therefore the national agreement applies to the new arrangement.

Any actual loss of earnings attributable to this new arrangement will be paid in line with relevant National Agreements and the total compensation for the loss of earnings under the Public Service Agreement due to the complainant was included in the submission.

Section 1 of the Payment of Wages Act 1991 defines wages, in relation to an employee as;

‘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 of otherwise.’

The facts of this case are set out above and they are not in dispute.

The respondent reduced the opening hours at one of its locations which resulted in the complainant being required to work one hour less. This hour fell within a band of excess hours and was not a reduction of the basic working week.

The complainant continued to claim payment for this hour despite not being requested to work it and believed that he should be paid for it despite not having worked it.

At the risk of appearing facetious there may be some part of the essential element of a contract of employment which the complainant has missed; in that it is an exchange of labour for wages.

Indeed, it is hard to believe that the complainant would have wasted his own, his employer’s and the Commission’s time and resources with such a fanciful complaint, which he ought to have known had no prospect of success.

It may have formed part of some tactical gambit on his part and that of colleagues (there was an identical complaint from another complainant heard on the same day) but that is not a valid use of WRC processes.

The complaint is vexatious and entirely without merit. It is not well founded.

For the reason set out above complaint CA-00034693-001 is not well founded

Payment of Wages