PWD2231

FULL RECOMMENDATION

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

BEAUMONT HOSPITAL
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

MR GARETH ENRIGHT

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer Decision No’s: ADJ-00031708, CA-00042235-001.

BACKGROUND:

2.This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991 on 4 March 2022. The appeal was heard by the Labour Court on 24 June 2022 in accordance with Section 44 of the Workplace Relations Act, 2015.

The following is the Court's Determination:

DETERMINATION:

This is an appeal by Beaumont Hospital against an Adjudication officer’s Decision ADJ-00031708 given under the Payment of Wages Act 1991(the Act) in a claim by Mr Gareth Enright that he suffered an unlawful deduction from his wages when he was not paid the correct out of hours rate of pay for calls out. The Adjudication officer found in favour of Mr Enright’s claim and awarded him €11,891.28.

In this Determination the parties are referred to as they were at first instance. Hence, Beaumont Hospital is referred to as ‘the Respondent’ and Mr Enright as ‘the Complainant’.

Background

The Complainant was employed by the Respondent from May 2012 until the 24^thJuly 2020 as a Senior Clinical Engineer. A feature of the role was that the Complainant could be called out but was not paid a stand-by allowance.

The Complainant’s case is that following the issuing of a HSE circular in February 2018 in respect of HSE ICT out of hours emergency on-call he was entitled to a standby allowance back dated to a given date.

The Respondents stated that the circular did not apply to the Complainant’s grade but that they did do an agreement with FORSA Trade Union in respect of his cohort of worker. The Complainant was involved in those discussions, but agreement was not concluded until after the Complainant had left the employment. The Respondent raised a preliminary issue that there was no beach of the Act during the cognisable period and therefore the Court did not have jurisdiction to hear the case.

Preliminary issue

The Respondent submitted that the complaint was lodged with the WRC on the 31^stJanuary 2021 therefore, the cognisable period under the Act is 1^stAugust 2020 to 31^stJanuary 2021. The Complainant has not identified any breach of the Act during that period.

The Complainant left the employment on the 24th July 2020 which is the last day he was paid for. This payment which was made on the 31^stJuly 2020 referred to the period 1^stto the 24^thJuly 2020 which is outside the cognisable period and therefore the Court does not have jurisdiction to hear the case.

The Respondent went on to say that at that time no agreement had been reached with the Trade Union in respect of changing the existing arrangement in respect of callout, although the parties were in discussion at that time.

As can be seen from the emails exchanged the Complainant was aware that on the day, he was leaving no agreement had been reached. He was given provisional figures as to what the payment might look like if agreement was reached. Following agreement being reached with the Unions in November 2020 the Respondent in April 2021 did make an offer to the Complainant which he declined.

The Complainant submitted that he did not get his payslip until after the 1st August 2020 as it had been sent to the wrong address and therefore, he felt that his complaint was in time. The Complainant submitted that the date of the breach of the act should be the date he received his payslip but could offer no legal authorities to support that proposition. He did not dispute that agreement with the Union had not been reached at the time he left.

However, he felt that the HSE circular that issued in February 2018 applied to him. He did not dispute that the Respondent in this case was not a HSE hospital but was a hospital funded by the HSE. The Complainant submitted that he felt all the money that he calculated he was due based on the circular should have been in his last pay packet. He also stated that he did not agree with the calculation the Respondent had done nor with the offer that was made to him at a later date.

Determination

The Complainant in this case was part of the negotiations and was aware at the time he was leaving that they had not been concluded. This is reflected in the email he sent on his last day 24^thJuly 2020 where he states, “My interest is ensuring that upon agreement I would be comprehended by the agreement even if it were to happen after I leave”. It is clear to the Court that the Complainant at that point knew that he would not be receiving any arrears of pay in his final pay package as the negotiations had not concluded. On that basis the Court determines that the Complainant has failed to identify a breach of the Act within the cognisable period.

Accordingly, the Respondent’s appeal is allowed, and the Decision of the Adjudication Officer is set aside.

The Court so Determines.

NOTE

Enquiries concerning this Determination should be addressed to Cathal Nerney, Court Secretary.