Complainant

Respondent

Anonymised Parties

A Registrar (NCHD)

Health Service Provider

Representatives

  The complainant represented herself

 Rosemary Hannigan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00037293-001

17/06/2020

The complainant commenced employment with the respondent on the 8.07.2019 and submitted that her contract of employment clearly stated that she was employed as a Registrar in Psychiatry and contended the respondent broke the contract by classifying her on the lower rate of SHO which resulted in her incurring significant losses both in basic salary and overtime payments. She asserted this constituted an ongoing loss as it delayed her assimilation onto the Registrar’s scale.

In her complaint form the complainant submitted as follows:

I commenced employment within the respondent’s Mental Health Services on 08July 2019. My contract of employment clearly states that I was employed as a Registrar in Psychiatry and it set out my agreed pay scale, which had a starting point of €56,850.00 . I noticed on my first payslip back in July2019 that I had been started on SHO 3 pay scale (49, 390.00 euro). This was my first job working in the Republic of Ireland.

When I got my first payslip on 02 August 2019, I have a copy of an email which I sent to HR asking if I was on the correct increment, because I was unfamiliar with incremental credit. Over a number of weeks, I emailed and phoned HR and payroll back and forth and I was told that I was employed as a registrar but that I would be paid at SHO 3 level, thus breaking the contract I had signed. I decided to join the Irish Medical Organisation (IMO) union in November 2019 because I wasn't making any progress. I also passed the second of 2 required psychiatry written exams in October 2019, thus lending more weight to the fact that I am a registrar. I spoke to my educational supervisor Professor A who agreed that now that since I had my exams, I could be paid as a registrar. She contacted business manager Ms.B  about this.

 I was busy over Christmas and New Year with work and the discussions fell by the wayside but I was still talking with the IMO and he issued a letter to the Mental Health services on 23rd February (I will forward this to you in the post.) He requested that I be put on the registrar 1 scale with immediate effect and also be re-numerated for wages lost since 08 July 2019. In that letter dated 23 February 2020, he stated that if this did not happen within 2 weeks, a WRC complaint would be submitted. My employer did not respond within 2 weeks and I wanted to submit a WRC complaint but the IMO said that in March 2020, with the worsening of COVID-19 and the lockdown, I would be unlikely to get a WRC hearing. I was very disappointed and I asked my current educational supervisor Dr C to phonecall Ms.  B directly so that I would be put on the registrar 1 scale. I was already due to move up an increment  on 08 March 2020, but I was not put onto the correct registrar 1 scale, as stated on my original contract of employment, until 09 April 2020. This is 9 months later and I have suffered significant financial loss during this time, not only in my basic salary, but also in my overtime payments, which are paid at a higher rate on the registrar scale than SHO scale. I have found the failure to rectify this basic contractual obligation from my employer to be extremely frustrating and a very stressful experience.

 I have been trying for months now to sort this out myself and I have not been reimbursed the money I am owed. I am due to move job on 13 July 2020. I would like to get this issue sorted out as a matter of urgency. If I had been paid correctly on registrar 1 scale from 08 July 2019 when I first started my employment, I should be due to move to registrar 2 scale as of 08 July 2020 (basic salary 59, 039 euro). However, this is not due to happen now until April 2021 because of the 9 month delay as stated. Therefore, I am now set to incur even further significant financial loss. I am in the process of saving for a deposit to buy a house and I must be paid for the work I have done as a registrar over the past year. Ideally, this would have been settled before now, without the need for a WRC complaint. I sent a further email to Ms.B  last week and I have had no response. Therefore, I feel that my only option now is to proceed with a WRC complaint. I would greatly appreciate any help with this issue. I will forward on supporting documents.

The complainant submitted a detailed chronology of her exchanges with the respondent’s representatives in relation to her grievance. She asserted at the hearing that Prof A had indicated that following the completion of her October 2019 exams , she could now be paid as a Registrar.

The complainant was adamant that her day to day clinical work was at least equal to that of a registrar.She asserted the contract was misleading and that she had taken up the position in good faith and declined contracts of employment in Australia and Northern Ireland to take up a Registrar’s post in the Republic of Ireland.She argued that she commenced her internship in the UK in August 2017 and accordingly had the requisite 24 months service by August 2019.

In response to the post hearing  documentation submitted upon by the respondent the complainant maintained that according to the respondent , internship is a year long programme and the equivalent in the UK is Foundation Year 1 – which she completed in August 2017 and not as set out as August 2018 in the respondent’s calculations.The complainant set out a complete account of her qualifications , post graduate exams and employment history since qualifying as a doctor.She complained that her experience in Australia was discounted as was a  period with the NHSCT in Northern Ireland.The complainant submitted that her contract clearly stated that she was being appointed to Registrar in psychiatry on the Registrar’s scale.The complainant set out further grievances in relation to her appointment to the Health Services in a geographic location  but this does not come within my remit as it is outside the cognisable period for this complaint.

The respondent’s representatives denied any breach of the Act and submitted as follows :

Firstly, on a point of information, I would note that the complainant has not sought to utilise the formal internal HR/IR HSE Grievance process to seek resolution for this dispute. The internal formal Grievance procedure process permits an employee to lodge a formal complaint, where a three stage process is enacted to provide a resolution prior to seeking a 3rd party referral.

The complainant had sought advice from Irish Medical Organisation (IMO) throughout this time and the respondent would be of the opinion that she would have been in a position to have sought or been provided with the option to enlist internal formal proceedings.

The employer as respondent would ask if the WRC has jurisdiction to hear this case at this point in time given the internal formal Employer resolution procedures have been bypassed.

The referral to the WRC was made as a complaint seeking adjudication under Section 6 of the Payment of Wages Act, 1991. The nature of the complaint is understood to relate to the complainant’s understanding that she was commencing employment on a ‘Registrar’ contract of employment but received a ‘Senior House Officer’ (SHO) Salary for her services.

At the time of hire, the complainant did not have the predefined two years’ experience required to qualify for the Registrar Salary scale and is seeking compensation from her start date of the 8th July, 2019 to the 8th March, 2020.

the 8th March, 2020 the complainant met the eligibility criteria and so was paid the Registrar Pay Scale.

The employer submission in this case is defined in that context.

Background

The complainant commenced employment with the respondent  on a Fixed Term Employment contact from the 8th July, 2019 to the 7th July, 2020  At that time,  the complainant was in receipt of a salary that was appropriately aligned with her experience.

The complainant was offered a Non Consultant Hospital Doctors (NCHDs) Employment contract. A NCHD contract is nationally agreed and is generic in nature to cover all NCHD appointments and situations across different divisions and services. In that context, the contract in its entirety forms the basis of the employment relationship between the parties, and should be read, and interpreted in that context.

The Respondent’s Position

Upon commencement of Employment, the complainant was paid at point 3 of the SHO salary, which aligned to the appropriate incremental point, determined by previous reckonable experience.

Following her reaching the two year experience requirement from March 2020, the complainant was then paid as per the Registrar Salary scale. There was no hesitation or delay from the employer in enacting this scale to the complainant once the requirements were met.

Section 16 of the Employment Contract provided the complainant with clarity in relation to incremental credit and stipulates that at least 24 months post qualification experience is required before being eligible for a ‘Registrar’ appointment.

The Employer refute the complainant’s claim to the WRC that “My employer has not paid me or has paid me less than the amount due to me”.

The salary scale provided to the complainant in her employment contract states it is subject to Appendix 1 of the employment contract. Appendix 1 provides the basic salary and allowances for Non-Consultant Hospital Doctor’s and that it will take precedence at all times in determining appropriate salary as per relevant, recognisable experience.

This is a collective and recognised process for the hiring of Non Consultant Hospital Doctors in determining their pay scale.

Conclusion

In conclusion, the employer is seeking clarification and determination, in the first instance, of the matters of WRC jurisdiction relating to:- whether it is reasonable or appropriate to insert itself into the procedural process, in a situation where the internal formal dispute resolution procedures have been bypassed by the complainant.

Extensive discussions took place at the hearing with respect to the complainant’s post qualification experience and the respondent undertook to review the experience set out by the complainant both abroad and in Ireland. It was submitted that in assimilating the complainant on to the 3rd.increment of the SHO scale the respondent had taken account of the complainant’s educational qualifications but the representative was adamant that there was no basis for applying the Registrar’s scale as the complainant did not have the  required 2 year post graduate experience.In this regard the respondent referenced par 16 of the generic NCHD contract which specifies …” In relation to the appointment of a doctor to the post of registrar , he/she should have at least 24 months post qualification (completion of internship) experience before being eligible for such an appointment.At the hearing the respondent asserted that by the time the complainant came to take up her position – it  was only then they noted the complainant did not have the requisite experience.The respondent’s rep stated that she had discussed the complainant’s salary with HR and Prof A and they had advised that some of the experience being relied upon by the complainant was not recognised here.

 In a post hearing the respondent submitted the following documentation  :

 1. Employees (Complainants) Employment Contract

2. Email from Prof A  re: 2 years post qualification experience

3. Draft proposal re: experience / accreditation calculations from the Royal College of Surgeons (Please refer to

"Recommendations" on the last page of the document)

4. Breakdown of how the complainant’s qualifications and experience were calculated

In response to the complainant’s post hearing submission, the respondent acknowledged “that the UK Foundation Year 2 (FY”) is the equivalent of a first year SHO ……” but went on to say that this does not impact on the appointed pay scale. It was submitted that a thorough review of the claimant’s qualifications was undertaken and their position had not changed. The respondent contended that some of the experience listed by the claimant was irrelevant  as it was not a training post.It was contended that “ at the time of hire , the complainant did not have the predefined 2 years’ experience  required to qualify for the Registrar’s scale.”

I have reviewed the evidence presented at the hearing and the extensive submissions of the parties. I am satisfied that there is no requirement on a worker to exhaust internal procedures before lodging an employment rights based complaint and accordingly I am satisfied that I have jurisdiction to hear this complaint.

This complaint was received by the WRC on the 17.06.2020 and consequently the cognisable period for consideration of the complaint is the 18.Dec. 2019 to the 17.06.2020.

The contract offered and accepted by the claimant was for a Registrar’s position. Paragraph 16 of the generic contract does specify that 2 years post qualification (completion of internship) experience is a requirement to be appointed as a Registrar. While the claimant completed her internship in August 2017, she would only become eligible for the Registrar’s scale if she had completed 2 years experience by August 2019.

The question arises as to whether the higher Registrar’s rate of pay constitute wages properly payable in circumstances where the respondent is disputing the claimant’s qualifications for a Registrar’s position. The claimant vehemently argued that she was doing the work of a Registrar from her initial appointment and no compelling evidence was advanced to refute this assertion .

I have reviewed the voluminous exchanges on the matter and note in the most recent submission from the respondent of the 21st.April 2021 that the respondent undertook a further review of the claimant’s post intern experience based on the claimant’s second submission to the WRC. While their initial calculation was that the claimant  would be eligible to be considered for a Registrar’s post in April 2020 , their revised calculation took into account an additional 3 months experience (in Australia – 1 month  and Northern Ireland 2 months) and have determined that the claimant became eligible to  be considered  for Registrar in January 2020.

On the basis of the evidence presented I find the respondent was in breach of Section 5 of the Act.

I uphold the complaint and require the respondent to assimilate the claimant onto the Registrar’s scale with effect from the 8th.January 2020.