Complainant

Respondent

Parties

Debbie  Ferguson

Health Service Executive

Representatives

Shane Mc Dermott Mullaneys Solicitors

Fiona Maguire

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-00038503-001

03/07/2020

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

CA-00038503-002

03/07/2020

The complaints are based on the contention by the Complainant that until March 2021 when she took up another post, she was working at the nursing grade of Clinical Nurse Manager 2 since 2012 and was not paid the appropriate rate of pay despite the recommendation of the HSE and neither did she received a statement of her terms of employment of her role. Submissions were made by the representatives of the parties at the hearing and both parties were satisfied with this approach.

While the parties are named in the published Decision, the generic terms of Complainant and Respondent are used in the text of the Decision.

The Complainant commenced employment in a day service in September 2007 as a CNM1. The submission for the Complainant sets out the chronological sequence of events covering the period from 2011 to 2020 during which she maintains that has worked as a CNM11 and therefore promotional post with additional responsibilities, without appropriate payment either on an ‘acting’ or permanent basis. Initially the Complainant was given a verbal assurance by her line manager that she would be upgraded. In 2015 she began correspondence with named managers and they in turn recognised and agreed that she was performing the duties of the higher role. In 2018 she was informed that there would be a role evaluation, and this was conducted in February 2019. On March 12th, 2019 she was informed by email that the ‘Equal Value Assessment’ found the duties she met the criteria of the CNM2 post. The Complainant responded by inquiring about back pay which she contended should be paid back to 2012. In June 2019 she was informed that certain issues had been raised by HR and was promised further information in early July. In August she received an apology for the delays in an email which referred to the process put in place by the author of the email as ‘flawed’. Her Tarde Union became involved and a meeting took place in September 2019. There was a suggestion that the upgrade might be done on a red circle basis. There is no further correspondence on behalf of the HSE until a letter of response to the Complainants solicitor who wrote on her behalf on November 11th, 2019. There was an acknowledgement of the solicitor’s letter on December 10th that ‘we are now in a position to pay backpay costs from the date it was brought to my attention and I have requested HR to finalise the contract for issue…at CNM2 Grade.’ On January 21st, 2020 referred to ongoing discussions with the HR Department, discussions regarding a date for commencement and back payment and that HR were in the course of completing a CNM2 contract. The response from the solicitor set out certain claims regarding both the rate of pay and the retrospection. In May 2020 the solicitor reissued the terms of the letter January and this was acknowledged a few days later promising to revert as soon as possible. On July 3rd, 2020 in the absence of any further contact from the HSE, the complaints were referred to the WRC.

Because the Complainant performed the duties of the higher grade as had been acknowledged and proven based on the correspondence from the HSE, in particular in late 2019 and early 2020, the Complainant sought an amount in excess of €36000 which is calculated by reference to the relevant salary scales back to 2012 when she commenced the duties of a CNM2. This payment should have been made and the non-payment represents a deduction from 2012 until she commenced a new post in March 2021. She sought a written statement of her terms of employment for the CNM1 post.

By reference to Section 6 of the Payment of Wages Act 6(4) and Section 7(3) of the Terms of Employment Act, it was submitted that the complaint seeking payment back to 2012 was outside of the time limits as defined in both pieces of legislation.

In respect of substance of the complaint under the Terms of Employment Act, it was submitted that the Complainant had received a statement of terms relating to her appointments as a staff nurse in 1997 and a CNM 1 in 2007.

The contention that the Complainant was performing the role of a CNM 11 or processes were followed which would allow for a CNM 11 vacancy to be appointed to the service where she was employed were disputed. The claim is for a post which was not approved through the proper channels and for which a recruitment campaign would be required. There was a suggestion at one stage of a confined competition for a CNM 11 post, but the Complainant rejected this approach as she felt she should be upgraded and paid accordingly. There is no job evaluation or work of equal value process in respect of nursing grades and while acknowledging that as assessment was carried out by a named person, such an assessment is not a valid or agreed mechanism for reviewing or determining an employee’s duties in their position.

The person who communicated with the Complainant and her solicitor in 2019 and 2020, does not have the authority to enter into contractual arrangments on behalf of the HSE.

The first point to be made is that if this case were to be decided solely based on fairness and empathy, the Complainant could have a very strong and well-made case for some recompense from the HSE. Whether this would extend to a payment of retrospection back to 2012 is another matter. In terms of the principle of fairness, she has truly received the run around from managers representing the HSE, in particular those who never engaged with her personally at any point. At no point since 2012 is there any evidence of anything other than a positive response and assurances from those with whom she dealt directly to the effect that she was doing the job of a CNM 11 and she should be paid accordingly. Yes, she did resist the possibility of a confined competition if that were formally offered but even then, nobody was disputing that she was doing the work of a CNM 11 or at least not until the hearing of this complaint. The Complainant co-operated with an evaluation process and was informed not once but twice that she was to be upgraded and implicitly she was informed on the second occasion that an upgrading would apply from October 2018 and a contract was being written to this effect. In 2019, after she was informed of the first resistance from HR following the evaluation, she received correspondence in December 2019 and again in January 2020 to the effect that she was to be upgraded and that a contract was being “written”. Still nothing happened, and the complaint was referred to the WRC. Repeatedly, cases from HSE employees appear before the WRC caused by delays and a failure to engage by following up on commitments to review, respond, revert. An eight/ nine-year process without a conclusion must be at the upper end of the scale in terms of poor employee experiences and frustrations.

Fairness is a consideration under the Payment of Wages Act 1991. However, it is not the only consideration. Unlawful deductions and payments withheld are rooted in the contract of employment and where relevant, statutory provisions such as statutory annual leave. There was no written contract provided to the Complainant which officially offered her the post of CNM 11 nor was there any figure for the rate of pay offered or agreed by her or with her. In fact, the Complainant at all times disputed the date of implementation of the upgrade as demonstrated by her correspondence as late as January 2020 and in her complaint where she is seeking payment back to 2012. Given the Payment of Wages Act provides compensation based on the amount deducted or withheld -in this case there is no reference point for an amount properly payable which was either withheld or deducted. And that element, the amount properly payable was never agreed. There is the question of an implied contract as provided for in Section 1(b) of the Act, but that section serves to defines the nature the relationship and not the basis of a claim of an unlawful deduction when the amount claimed was never agreed in the first instance, not even with the person who did indicate on two occasions that the claim for upgrading was successful.

 The Complainant has no document offering her rate of a pay-merely a promise of an upgrading and a contract, neither of which materialised. In conclusion none of the correspondence issued to the Complainant can be given the status of much more than a promise, which was misleading in that those promises were not within the gift of the manager concerned and, frankly should not have been made without the appropriate authority. Or should have followed through by the HSE one way or another. Ultimately however, there was no deduction of an amount properly payable to the Complainant.

In respect of the complaint under the Terms of Employment Information Act, the Complainant had at all times a contract of employment for the position and grade to which she was appointed. The expectation that in effect an order would be given to issue a contract for an upgraded post which is disputed by the employer would not be appropriate as it would place this decision maker in the role of deciding and imposing on the Respondent, the contractual basis of the employment relationship including the role and function of the Complainant and her rate of pay. The same point applies to any question of compensation.

CA-00038503-001-Payment of Wages Act 1991

This Complaint brought by Debbie Ferguson against the HSE is not well founded.

CA-00038503-002-Terms of Employment Information Act 1994

This Complaint brought by Debbie Ferguson against the HSE is not well founded.