Complainant

Respondent

Parties

Gareth  Enright

Beaumont Hospital

Representatives

Aoife McDonnell IBEC

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-00042235-001

31/01/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and one witness for the respondent gave their evidence under affirmation. Both parties were allowed to cross examine the witness for the other party.

The adjudication Officer sought additional information and submissions from both parties, the last of which was received on 16 December 2021.

The complainant was employed with the respondent for eight years up too June 2020, most recently as a Clinical Engineer.

The complainant submitted that in early 2015 he started to receive out of hours calls and when he enquired as to why was informed that he had been added to an on-call roster.  He submitted that expectation was that the and his colleagues would provide an out-of-hours standby system with no arrangement for a stand by payment.

The complainant submitted that the context of this was that they had to provide an out-of-hours service to support critical equipment issues in a busy hospital setting.  The complainant submitted that this had a significant impact on his personal life and wellbeing as these calls out-of-hours were usually for the most urgent situations to ensure the good operating of life-saving equipment.

The complainant submitted that in February 2018 a circular was issued which made provision for a standby payment.  The complainant submitted that while the circular maid provision for retrospective payment, the respondent decided to make the payment form the date of the Circular onwards.

At a meeting with the respondent’s HR section, the complainant (and others) were asked to collate figure for the impact of retrospection.  This compilation took some time.

In June 2020 the complainant was offered a promotional opportunity with an alternative employer. While contemplating this opportunity, the complaiant sought information regarding the backdated payments and was informed that he would not be left out of the payments in respect of the backdating claim.

The figures were sent to the complainant prior to his taking up the promotional post but did not include a number of items, including full retrospection and payment for the period from January 2020 to July 2020.

The complainant submitted that the payments promised by the respondent were not honoured and he took a complaint to the WRC.

Preliminary matter

The respondent submitted that the alleged contravention occurred on 31 July 2020 and that the complainant submitted more than six months after that date.  The respondent submitted that the Payment of Wages Act, 1991 limits the time period within which a complaint must be presented to 6 months.

Substantive matters:

The respondent submitted that it is a large academic teaching hospital providing emergency ad acute services across 54 medical specialities. The respondent refutes the claim in its entirety and submitted that the complainant was paid his wages in accordance with terms of the Payment of Wages Act.

The respondent submitted that at no point was the complainant paid below his contractual salary and in line with the established norms of the respondent. The respondent cited Section 5(6) of the Payment of Wages Act, 1991, as follows:

“Where (a) 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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The respondent submitted that the complainant was not owed any remuneration.  The respondent submitted that the important element to establish is what were the wages “properly payable” to the employee on “that occasion”.

The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment.   

The respondent submitted that the Payment of Wages Act does not allow a complainant to seek costs or other amount not specified in his contract of employment.

The respondent submitted that this complaint is taken without merit.

Preliminary matters:

Section 41(6) of the Workplace Relations Act, 2015 – 2021 states as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.  

The respondent submitted that the alleged contravention occurred on 31 July 2020 when the payslip was sent to the complainant by post and that as the complaint was only lodged with the WRC on 31/01/2021, this complaint falls outside the limitation period envisaged by the Act. 

It is a matter of settled law that when correspondence is send by post, its date of delivery is deemed to be the following working day, this is known as the ‘Postal Rule’.  Section 25 of the Interpretation Act, 2005 states that:

The information provided to the public by An Post, the national postal service, indicates that National Delivery will be effected the next working day for standard and registered post (https://www.anpost.com/Post-Parcels).  The respondent confirmed at the hearing of this matter that the complainant’s payslip was sent out on 31 July 2020 but was unable to confirm whether the delivery was by way of standard or registered post. 

31 July 2020 was a Friday and the Monday following, 3 August 2020 was a bank holiday.  In accordance with Section 25 of the Interpretation Act, 2005 and the information available from the national postal service, the delivery of the payslip was deemed to have been effected on 4 August 2020.  Accordingly, I find that the complaint was made within the time limits laid down in Section 41(6) of the Workplace Relations Act, 2015 – 2021 and is properly before the Workplace Relations Commission.

Substantive matters.

The Respondent contention that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment is correct.  However, the respondent’s contract of employment cannot be regarded in isolation where matters such as wages and operational policy are affected by Circulars (of its parent organisation) and promulgated by the respondent.  In this regard the Circular 008/2018 could be regarded as written notification of terms and conditions of employment or amended terms and conditions of employment.

Notwithstanding the foregoing, the respondent by engaging with its employees in the implementation of the terms of Circular 008/2018 accepted that there was a change in the terms and conditions of all its employees.  Furthermore, by engaging in discussion as to what remuneration was appropriate retrospectively and paying the subsequently agreed amounts to the complainants’ former colleagues, the respondent accepted that such payments constituted the wages properly payable to their employees.

Having regard to the written and oral submissions of both parties, I find that the amounts agreed by the respondent as allowances and given retrospective effect when they were paid to the complainant’s former colleagues constitute wages that were properly payable to the complainant.  I find that the delay in agreeing the amounts of the retrospective payment to the complainant should not penalise the complainant who took a promotion while the deliberations were ongoing.

I find that the amount properly payable to the complainant is the same level of remuneration as his colleagues were receiving at the same time (having regard to the retrospective nature of the payments).  Accordingly, I find that the complaint is well founded.

The complainant submitted an analysis of the retrospective remuneration he was owed, in accordance with the process laid down by the respondent:

For the period 1 August 2017 to 30 September 2018 the calculations are as follows

For the 8 callouts he received 4 hours at double time which equals 64 hours. Recalculating this in accordance with the updated procedures would equal 40 hours at the hourly rate of €24.77 at that time. The differential between 64 hours and 40 hours is 24 hours @ €24.77 = €594.48

The on-call allowance per circular 008/2018 is €450 per week. 12.2 weeks @ €450 = €5,490 less differential calculated above = €4,895.52

For the period 1 October 2018 to 31 December 2019

For the 9 callouts he received 4 hours at double time which equals 72 hours. Recalculating this in accordance with the updated procedures would equal 45 hours at the hourly rate of €26.32 at that time. The differential between 72 hours and 45 hours is 27 hours @ €26.32 = €710.64

The on-call allowance per circular 008/2018 is €450 per week. 11 weeks @ €450 = €4950 less differential calculated above = €4,239.36

For the period 1 January to 24 July 2020

For the 10 callouts he received 4 hours at double time which equals 80 hours. Recalculating this in accordance with the updated procedures would equal 50 hours at the hourly rate of €28.12 at that time. The differential between 80 hours and 50 hours is 30 hours @ €28.12 = €843.60

The on-call allowance per circular 008/2018 is €450 per week. 8 weeks @ €450 = €3600 less differential calculated above = €2,756.40

Having regard to the foregoing I am satisfied that the additional amount properly payable to the complainant was €11,891.28

Having regard to the written and oral evidence submitted in this case and to my findings above, my decision is that this complaint was lodged within the timeframe outlined in Section 41(6) of the Workplace Relations Act, 2015 - 2021

Having regard to my finding above that this complaint is well founded, my decision is to award the complainant wages in the gross amount of €11,891.28 less any amount of lawful deduction therefrom.

Postal rule, Payment of Wages, well founded complaint