The Respondent named in this case was University Hospital Kerry. The correct title of he Respondent is the Health Service Executive (HSE). University Hospital Kerry (hereinafter 'UHK") is a hospital campus operated by the HSE and is the work location of the Complainant. The Complainant is employed by the HSE in the position of Consultant Radiologist with a current work location at UHK. A copy of the Complainant's Contract was supplied. The Complainant has sought adjudication upon the complaint under Section 6 of the Payment of Wages Act 1991. The complaint appears to relate to an alleged contravention of Section 5 of the Payment of Wages Act 1991 as amended. The Respondent had not received Submissions from the Complainant at the initial Hearing and the only information available to the Respondent as at the date of Submissions is what the Complainant has set out on the WRC Complaint Forms. This was rectified in latter correspondence. The Respondent understands from same that the Complainant's complaint relates to what are termed "C Factor payments" for on-call duties under his Contract of Employment The Adjudication Officer's attention was drawn at the Hearing to the fact that the Complainant has, in April 2019, accepted and availed of a High Court Settlement Agreement which deals with various matters pertaining to his Contract of Employment. The background to this is that a significant number of Consultants employed by the Respondent (or employed by agencies funded by the Respondent), with similar Contracts of Employment to the Complainant, brought litigation in the High Court alleging a failure to pay remuneration and/or pension entitlements in accordance with the terms of their contract of employment, the Consultant Contract 2008. The 10 lead cases in that litigation settled in 2018. The arrangements set out in the Terms of Settlement were made available to the other litigating Consultants and to certain non-litigating Consultants, who fell within the Terms of Settlement, for acceptance or rejection by those Consultants. Arising out of the settlement of those proceedings, the Department of Health issued amended Consultant Salary Scales to give effect to the Settlement Agreement. There are some differences in the Salary Scale (and the rates and annual limit for C Factor payments) to apply post-settlement between Consultants who have "availed of' the "settlement agreement" and those who have not/cannot avail of it. The Complainant in the within case, the Complainant, was a nonlitigating Consultant who opted to avail of the Terms of Settlement. The Respondent provided a copy of the Settlement Agreement and a copy of the Complainant's acceptance of that Settlement Agreement dated 25th April 2019. The Respondent argued that in those circumstances, having availed of the Settlement Agreement, the Complainant was essentially trying to litigate a matter in respect of which he has already entered into a binding agreement. The Respondent argued that therefore, the WRC had no jurisdiction to determine the within complaint, being a matter which falls within the parameters of the High Court Terms of Settlement entered into by the Complainant with the Respondent. It was noted that in the Complainants WRC Complaint forms, he stated that the annual overtime limit applicable to him was €22,303. This figure is the annual limit for C Factor payments as set down in Department of Health Salary Scales. The Respondent brought to the Adjudication Officer's attention that a revised annual limit is now applicable to the Complainant (as he has availed of the Settlement Agreement in April 2019), and that limit is in fact €30,000 per annum. University Hospital Kerry was in the process of implementing the revised Salary scales from the appropriate date for all "settlement agreement consultants" the Complainant would be paid any outstanding C Factor payment arrears due to him for 2019, provided same is in accordance with the Settlement Agreement up to the new maximum. The Complainant was initially employed by HSE at on a specified purpose contract at UHK from 1 st August 2011. The Complainant was subsequently appointed to a permanent position at UHK with a commencement date of 3rd August 2015. The Complainant was appointed pursuant to the standard HSE Consultant's Contract 2008 (Type B Consultant post). The Complainant signed his Contract on 16th March 2016. The Respondent drew the attention of the Adjudication Officer to the following provisions within the Complaint's signed Contract of Employment: Clause 7 of the Contract deals with "Hours of Work". Clause 7 (d)(i) in particular, sets out that in addition to the contracted work commitment of 39 hours per week, the Consultant may also be required to participate in the oncall roster as determined by the Employer/Clinical Director. The payment for on-call matters is set out at Clause 23. Clause 23 of the Contract deals with "Salary and other payments". Clause 23(a) refers to the Consultant's annual salary, being that which is set out in Department of Health salary scales. Clauses 23(g) and 23(h) refer to OnCall Payments (known as B Factor payments) and Call-out Payments (known as C Factor payments). Both B Factor and C Factor payments are as set out in the Department of Health Salary Scales also. Clause 32 of the Contract is the "Acceptance of Contract" clause. Clause 23(a) states:- "This Contract, the associated Terms and Conditions and Appendices and terms expressly incorporated by reference or by statute contain the terms of the Consultant's employment with the Health Service Executive". Clause 32(b) v is a Declaration by the Consultant that he has read the Contract document and that he accepted the post of Consultant Radiologist in accordance with the terms and conditions specified. A copy of the current Department of Health Salary Scale for a Consultant (dated 1 st September 2019) was provided to the Hearing. Notwithstanding the preliminary legal points set out above, and without prejudice to same, the Respondent's set out its response to the within complaints:- It appears that the WRC complaint allege that the Respondent has breached Section 5(6) of the Payment of Wages Act 1991 in respect of payments made to him on 01/10/2019 and 01/1 1/2019. Section 5 (6) of the Payment of Wages Act 1991, as amended, states: “Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. ' What is "properly payable" to the Complainant is what he is entitled to pursuant to his Contract of Employment. The Respondent was satisfied that the Complainant's basic salary has been paid to him each fortnight in respect of the period referred to in the complaint. Given the reference on the Complainant's WRC Complaint Form to "annual overtime limit of €22,303' the Respondent anticipated that the complaints concern Call-out Payments (C Factor payments) under his Consultant's Contract. As per the Complainant's Contract, calculation of B Factor and C Factor payments is determined by reference to the Department of Health Salary Scales. The attention of the Adjudication Officer was drawn to page 70-71 of the current Department of Health Salary Scale dated 1 st September 2019 which sets out how B Factor and C Factor payments are calculated. “B Factor payments: All Consultants with an on-call commitment are paid a Flat Annual Payment. Depending on the roster type an additional payment may be payable i.e. 1 in 3 roster attracts an additional €2,234 per annum. (greater figure if part of Settlement Agreement as referenced above). The additional payment would only be paid if a Consultant worked primarily on a 1 in 3 roster for the majority of the year. The Complainant's roster would appear to be, for the most part, a 1 in 4 roster, sometimes 1 in 5 roster. C Factor payments: It is apparent from a review of the Department of Health Salary Scale that there is an annual limit in respect of C Factor payments. An annual limit applies to all Consultants. The limit which is applicable depends on which category a particular Consultant falls into — whether the Consultant comes within the "settlement agreement" or not (as referenced above). The annual limit for C Factor payments is €22,303 per annum for each Consultant apart from those who are part of the Settlement Agreement. For the Settlement Agreement Consultants, the annual limit has been increased to €30,000 per annum,” By way of background, an annual limit for C Factor payments set out in Department of Health Salary Scales has been a long standing part of public pay policy and has been in place for some time prior to the Complainant first taking up employment with the Respondent. It should be noted that over the years the Department of Health Salary Scales have been revised/updated at various stages, to include a revision to the annual limit for C Factor payments. The Complainant does not make the case that he is not or was not aware of the annual limit or cap on C Factor payments set down in the Department of Health Salary Scales. In fact, it is noted that the Complainant has acknowledged that there is an annual limit on C Factor payments - he refers to 'an annual overtime limit of €22,303'. If a Consultant has reached the applicable annual limit on C Factor payments, then the Respondent considers that the Consultant has been paid the total amount of wages properly payable to him/her. If it is the case that the Complainant in the within case is seeking to suggest that a sum in excess of the annual limit for C Factor payment is properly payable to him, the basis for such a contention is unclear to the Respondent. The Complainant is bound by the terms of his Contract of Employment and indeed by the Terms of Settlement of which he availed in April 2019. He is contractually obliged and has agreed to participate in on-call duties when called upon to do so by his Employer. The method of calculation regarding payment for such work has been clearly set out for the Complainant. The Respondent's position was that the Complainant is not entitled to disregard the C Factor payments "annual limit" as set out in the Department of Health Salary Scales and as expressly incorporated into his Contract of Employment and Terms of Settlement relating thereto. The Complainant is in the same position in this regard as other Consultants employed by the Respondent. It is noted that in the Complainants WRC Complaint forms, he stated that the annual limit applicable to him was €22,303. As above, University Hospital Kerry is now in the process of implementing the revised Salary Scales for all settlement agreement consultants. In respect of the Complainant, this will include re-examining his C Factor claims for 2019 and, subject to the Terms of Settlement, he will be paid any outstanding C Factor payment arrears due to him, subject to the annual limit applicable of €30,000. For 2020 and onwards, the annual limit applicable to him for C Factor payments is €30,000. The Respondent's position is that the Complainant has been paid all sums which are properly payable to him by the employer in connection with his employment or payable under his contract of employment. It appears to the Respondent, that the Complainant's case is that, whatever the annual limit for C Factor payments may be, he should be paid a sum over and above the annual limit, and this cannot be accepted by the Respondent in light of the Contract of Employment and Terms of Settlement. The Respondent has demonstrated compliance with the provisions of the Payment of Wages Act 1991. In so far as the Complainant seeks to suggest that he should be paid a sum over and above the annual limit applicable to him for C Factor payments under his Contract and in accordance with the Terms of Settlement availed of by the Complainant, the Respondent requested the Adjudication Officer to:- decline to uphold the complaints on the basis it has no jurisdiction to determine the complaints; or in the alternative, decline to uphold the complains on the merits. The Complainant has, in additional information submitted to the WRC dated 6th April 2020, with a schedule of on-call hours he states he worked between 1 st September 2019 and 31 st December 2019. He asserts that he has worked for 249 hours in those months that were unpaid. The Respondent does not take issue with the data in that schedule. The Respondent submitted that its original Submissions remain applicable in relation to this additional information. As set out therein, the Complainant was subject to an annual limit on C Factor payments, in the same way as all other Consultants. In the original Submissions, it was stated that following the settlement agreement reached with Consultants, University Hospital Kerry was in the process of implementing the revised Salary scales from the appropriate date for all "settlement agreement consultants" (including the Complainant) and the Complainant would be paid any outstanding C Factor payment arrears due to him for 2019, in accordance with the Settlement Agreement. The Respondent confirmed that those calculations have now been completed and additional payments due to the Complainant pursuant to the revised C Factor annual limit have since been paid to him on 30th April 2020. On that date the Complainant was paid a sum of €11 ,071 comprised of payments in respect of the following: 2018 arrears of C Factor due €3,371.00. 2019 arrears of C Factor due €7,700.00. The payment of €7,700.00 relates to C Factor work done by the Complainant up to September 2019 at which point he reached the new applicale €30,000.00 annual limit for C Factor payments. What is being sought by the Complainant in his claim is in excess of the nationally agreed terms and conditions. His claim is not appropriate in the context of the Payment of Wages Act, which seeks to ensure that employees receive the payments which are "properly payable" to them. What is "properly payable" to the Complainant is what he is entitled to pursuant to his Contract of Employment, the settlement agreement terms of which he availed in April 2019, and Deparatment of Health salary scales. The Complainant is clearly aware of the relevant annual limit for C Factor payments, given that same are referred to in his complaint. It is the Respondent's position that the Complainant has been paid what is "properly payable" to him and the Respondent reiterates its original Submissions. The Respondent advised the Hearing that it has been taking steps to reduce the on-call commitment of Consultants in University Hospital Kerry. Part of the reason why there was the level of on-call duties required. in 2019 included consultant vacancies and CT scanner availability. It should be noted that, for example in the additional information provided by the Complainant on 6th April 2020, whilst some of the examinations may have been requested within core hours, due to lack of capacity within the CT department the examinations may not have been performed until after 5.00 pm (at which point the Complainant would have been on call.) | 
