Complainant

Respondent

Parties

Mohsin Moola

Irish Prison Service

Representatives

Thomas Smyth, Irish Medical Organisation

Glen Gibbons, BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00008787-016

14/12/2016

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

CA-00008787-017

14/12/2016

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

CA-00008787-018

14/12/2016

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

CA-00008787-019

14/12/2016

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

CA-00008787-020

14/12/2016

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

CA-00008787-021

14/12/2016

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

CA-00008787-022

14/12/2016

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

CA-00008787-023

14/12/2016

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

CA-00008787-024

14/12/2016

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

CA-00008787-025

14/12/2016

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

CA-00008787-026

14/12/2016

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

CA-00008787-027

14/12/2016

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

CA-00008787-028

14/12/2016

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

CA-00008787-029

14/12/2016

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

CA-00008787-030

14/12/2016

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

CA-00008787-031

14/12/2016

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

CA-00008787-032

14/12/2016

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

CA-00008787-033

14/12/2016

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

CA-00008787-034

14/12/2016

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

CA-00008787-035

14/12/2016

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

CA-00008787-036

14/12/2016

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

CA-00008787-037

14/12/2016

From January to November 2006, the complainant was employed by a GP locum agency and worked as a doctor in Cloverhill Prison.  He returned home to South Africa at the end of 2006 and while he was there, he was contacted by the then governor of Cloverhill, Mr Liam Dowling.  Mr Dowling informed the complainant that a vacancy had arisen due to the resignation of the full-time doctor and he invited him to apply for the job.  The complainant decided to return to Dublin and, on January 22nd 2007, while he was waiting for the job to be advertised, he commenced working on a temporary basis as a prison doctor in Cloverhill.  The permanent job was never advertised and the complainant is now employed as a doctor in Cloverhill on a contract of indefinite duration.

In contravention of section 5 of the Payment of Wages Act 1991, the complainant alleges that the respondent made an illegal deduction from his wages, by reducing his weekly on-call allowance from €199.39 to €99.69 (from €10,404 to €5,202 per year).  The reduction happened on August 5th 2010 and, since that date, the complainant is paid a weekly allowance of €99.69, compared to €199.39 which he was paid from January 2007.

The reduction in the on-call allowance coincided with a temporary cut in allowances between 2009 and 2013 for the majority of public servants, arising from the provisions of the FEMPI legislation[1].  The FEMPI cuts came into effect in January 2010, although the cut in the allowance for prison doctors was not implemented until August that year.  On that date, the complainant’s allowance was reduced by half, and the FEMPI cut was also applied, reducing the on-call allowance to €94.71 per week.  These complaints of an illegal deduction in pay are concerned only with the 50% reduction in the allowance and not with the FEMPI cut.

Summary of the Written Submission

From his work as a locum in 2006, the complainant understood the concerns of doctors in the prison service, including the fact that there had been no pay increase since 2004, the pay for on-call and out of hours duty was low and there was an issue over hours of attendance.  In January 2007, to attract him back from South Africa, Mr Smyth said that the IPS negotiated an “individualised verbal contract” with the complainant.  The “individualised terms” offered included a weekly on-call allowance of €199.39.  Prison doctors employed on standard terms contained in a 2004 template contract are paid this rate per fortnight. 

The details of the complainant’s individualised contract were never reduced to writing; rather, his verbal contract provided that he would be paid as a full-time prison doctor with benchmarked increases, including back-pay, 42 days’ annual leave and double the on-call allowance in the 2004 contract.  He also asserted that, separately to his employment contract, it was agreed that he would be a supplier to the IPS to provide emergency evening and weekend attendance at the hourly rate for locum doctors.  This arrangement changed in 2011, when the complainant was discontinued as a supplier and set up as a temporary employee to provide out of hours cover.  This temporary contract status was in addition to his full-time position.  Mr Smyth argued that the on-call allowance is directly associated with the complainant’s service providing out of hours emergency cover.

As part of his individualised verbal employment contract to take up the post as a prison doctor, the complainant was also allowed to work outside the prison.  A copy of a letter from an assistant governor in Cloverhill dated July 26th 2007 was submitted in evidence which shows that the IPS supported the complainant’s application to apply for a Business Permit visa.

Mr Smyth argued that the decision of the former Employment Appeals Tribunal (EAT) in the complainant’s previous claim against the IPS[2] has a significant bearing on this complaint.  He said that “the fundamental issue of contention is the same” where the IPS claims that the complainant is bound by the 2004 template contract and they deny the existence of “an individualised verbal employment contract.”  On May 8th 2017, the EAT determined that the decision of the IPS to reduce the complainant’s wages to reflect the hours he attended in the prison was in contravention of the provisions of the Payment of Wages Act.  

Mr Smyth said that the IPS has been attempting to move the complainant to the 2004 template contract, which was not issued to him at the commencement of his employment in 2007.  When he returned to Cloverhill in 2007, he did not refuse to sign the template contract, because he wasn’t given it to sign.  The fact that the IPS has remunerated Dr Moola differently and that he works under terms that differ from the 2004 template contract is, Mr Smyth submitted, “clear evidence of his individualised verbal employment contract.”  The IMO position is that the argument as to whether Dr Moola is bound by the 2004 template contract has already been determined by the EAT.

Since he commenced in the role of prison doctor in Cloverhill in 2007, the complainant has provided medical cover for 24 hours a day, seven days a week, except when he is on annual leave.  In his submission, Mr Smyth described the many innovations undertaken by the complainant, including the introduction of in-house services such as phlebotomy, STI screening and treatment and suturing.  The initiatives he introduced have improved patient care and generated a significant cost-saving by reducing hospital visits with the attendant security risks.  The complainant completed a Higher Diploma in Medicine Dermatology and he initiated nurse prescribing.  He was to the forefront of an exercise to update the skills of prison doctors in infectious diseases.  In 2009, he helped to reduce locum costs by 40% by extending his regular weekend clinics to Wheatfield Prison. 

It is the complainant’s case that a valid contract of employment was entered into between him and the IPS in January 2007.  The terms of this individualised contract provide for a specific on-call allowance payment and an emergency attendance rate.  The fact that the respondent respected the complainant’s terms and conditions for a number of years is evidence of the agreed nature of the terms.  In February 2010, the respondent attempted to get the complainant to sign a contract, which he refused to sign on the basis that it was different from the terms he had agreed in 2007.  Six months later, in August 2010, his on-call allowance was reduced from €199.39 per week to €94.71.  Shortly afterwards, his emergency attendance rate was also reduced to the 2004 template contract rate.

Claims under the Payment of Wages Act 1991

In light of the lack of agreement or consultation with the complainant regarding the reduction in the on-call allowance, Mr Smyth asked me to find that the amount not paid should be re-paid.  He referred to the decision of the High Court in Petkus and Others v Complete Highway Care Limited[3], where the Court referred a reduction in wages back to the Labour Court for a determination under the Payment of Wages Act.  Referring to section 5(6) of the Payment of Wages Act, Mr Smyth claims the “unilateral reduction” in the complainant’s on-call allowance is an illegal deduction.

For 22 weeks between July 15th and  December 9th 2016, the deduction in the complainant’s on-call allowance amounts to €2,193.18.  Eight complaints submitted up to August 17th 2020 result in a total deduction of €23,137.  Mr Smyth said that further claims will be submitted in respect of the period after August 17th 2020.  He said that, if I find that the respondent is in breach of the Act, new claims may not be necessary.  He asked that I direct the respondent to reinstate the previous rate of the allowance and to repay in full the deducted amount.

Summarising the complainant’s case, Mr Smyth said that, for more than three years, from January 2007 until August 2010, the on-call allowance was paid at double the standard annual amount of €5,202.  While the IPS made a point about the delay submitting this complaint, it appears from the evidence given by Mr Doyle for the IPS, that they only got around to investigating it in March 2021.  Mr Smyth said that he accepts that there was a delay on their side. 

Evidence of the Complainant

The complainant said that he worked as a locum in Cloverhill Prison in 2006 and, when a new doctor was appointed at the end of the year, he mentored him, before returning home to South Africa. 

After Christmas 2006, the complainant said that he got a phone call from the then governor, Liam Dowling.  He said Governor Dowling offered him a permanent job, on the basis of the 2004 template contract which was agreed with the IMO.  The complainant said that he was aware of long-standing issues between prison doctors and the IPS.  There had been no salary increases for a number of years and there was also an issue with allowances.  Doctors wouldn’t attend prisons after hours.  The complainant said that he told Governor Dowling that he wasn’t interested in the job on the terms offered.  He said that Governor Dowling got back to him and that they negotiated a contract.  He said that he wanted to be clear about the terms offered.  He said that he was offered the annual salary for prison doctors, and that it was agreed that, if increases were applied, he would get back-pay.  He said that the on-call allowance was very low, and “we negotiated double.”  He agreed that he would provide after-hours cover at the locum rate of pay.  He also negotiated that he could work as a GP outside the prison service.

The complainant said, “the prison was desperate” and that he also wanted what was in his best interests.  He negotiated payment of his medical council fees and 42 days’ holidays a year.  He said that he doubted if the IPS would stand over the offer.  He said that he looked for a contract, but that “they were afraid to give me a contract.”  The complainant described the contract he was offered to take up the job in Cloverhill in 2007 as a “merger” between the 2004 template contract for prison doctors, with some permanent benefits and some locum benefits.

In July 2007, with the support of the Governor Dowling, the complainant applied for a renewal of his work permit.  His application was rejected because he was employed in two other places as well as the prison.  The complainant said that “this was an opportune time to make me compliant.”  The prison then supported his application for a business permit.  He said that they would not have supported his application for a business permit if he had not been on individualised terms.

The complainant said that he was first offered a written contract of employment in 2010, which he refused to sign, because the terms were different to the terms he accepted when he returned to Ireland in January 2007.  He said that the on-call allowance was then reduced.  He said that slowly, his terms have been eroded.  First, the on-call allowance was reduced, then the out of hours attendance payment.  In 2012, when his wages were reduced because of his attendance, he said that he was prompted to complain about the on-call allowance.  He said that he brought the issue to the attention of the IMO in 2010. 

Cross-examining of the Complainant

The cut in the on-call allowance occurred in 2010.  Mr Gibbons asked the complainant why he didn’t complain about this when he made the original complaints in 2015 that led to the hearings at the EAT.  The complainant replied that he didn’t know in 2010 that the WRC could have addressed the cut in the allowance.

Mr Gibbons put it to the complainant that he knew about the WRC/EAT in 2015, and he was aware that options were available other than the courts.  He asked the complainant why, when the allowance was reduced in 2010, he didn’t take the matter further.  The complainant replied that he expected the IMO to take things further.

Mr Gibbons suggested to the complainant that he had been advised by the IMO and he had options.  When he triggered his options, he complained only about the reduction in pay arising from his presence in the prison for less than 39 hours a week.  The complainant replied that he acted on the advice of the IMO. 

The complainant referred to a “slow erosion” of his terms and conditions.  The issue being considered at this hearing is the reduction in the on-call allowance which occurred over a decade ago.  The complainant said that this was the “commencement of the slow erosion.”  He said that he accepts that “we delayed.” 

Mr Gibbons pointed out that locum doctors are not paid an on-call allowance.  The complainant explained that since 2006, prison doctors refused to attend out of hours or at weekends.  When he worked as a locum in 2006, he was paid for attending out of hours, at the locum rate.

When he is on call, the complainant said that he can’t leave the city, he must be sober and capable of prescribing medication. 

Mr Gibbons referred to the payment of the on-call allowance of €199.39 which is paid fortnightly to prison doctors.  He suggested to the complainant that his assertion that it was agreed that he would be paid double this amount is novel, as a double payment is not the locum rate, and it is not the rate in the 2004 template contract.

In response, the complainant said that he is on a salary, and he has the benefit of a pension.  He said that he could have opted to work as a locum.  He said however, that his contract is individual, and has aspects of both.  He said that there are similarities and differences.  The 2004 contract does not permit a doctor to work outside the prison.  Locum doctors are paid a standby allowance of €125 per night.  He said that he has a “bespoke” contract. 

Asked to produce evidence of documents and dates to support the existence of this bespoke contract, the complainant said it was based on a verbal agreement with Governor Dowling, mainly on the telephone.  He said that there was some email correspondence in which the IPS agreed to pay his Medical Council Fees and his professional indemnity insurance.  He said that he couldn’t say how long the telephone call lasted with Governor Dowling, but that there was more than one call.  When he told Governor Dowling that he wasn’t happy with the annual on-call allowance of €5,202, he said that he was offered double that amount.  Mr Gibbons put it to the complainant that this was untrue.  He said that the only document that exists shows that the double payment was an error.  Mr Gibbons referred to the witness statement of Mr Tom Doyle, from the IPS HR Directorate, in which Mr Doyle explained that an error occurred when the complainant was set up on the payroll.  When he was being set up, Mr Doyle said that the complainant’s pay frequency was amended from fortnightly to weekly, but the amount specified for the on-call allowance was not amended and €199.39 was paid weekly instead of fortnightly.

The complainant replied that this didn’t make sense.  He said if he had been paid in error, the payroll section would have attempted to recoup the overpayment.  He also said that there is a discrepancy in the document submitted at the hearing.  He believes that the document submitted which is said to be an email dated February 15th 2007 has been altered.  The complainant said that he submitted this email to EAT, and the email produced as evidence for this hearing is different.  He said that a table has been added into the email which was not in the original.  The complainant said that if the error came to light in August 2010, then there was time to speak to him about it.

Further Evidence of the Complainant

When Mr Doyle of the IPS HR Directorate finished giving evidence, the complainant addressed some of the issues he raised.  The complainant said that when the on-call allowance was reduced in August 2010, he alerted the IPS HR Directorate and he also spoke to the IMO.  He reiterated that, when he was recruited, there was no reference to the 2004 template contract and he was offered different terms.  The on-call allowance was doubled, he was paid for out of hours attendance at the supplier rate of pay and his medical council fees were reimbursed for a number of years.  The complainant said that it is disingenuous of the respondent’s witnesses to say that they didn’t know about his personalised contract.  He said that the permanent job was never advertised, with the result that he is now employed on a contract of indefinite duration.

Summary of the Written Response to the Complainant’s Submission

The IPS wholly rebuts the assertion that there was a double on-call allowance agreed between them and the complainant as a part of an “individualised employment contract” negotiated with former Governor Dowling.  The complainant’s claim that he negotiated a verbal agreement is denied by Mr Dowling.  The onus is on the complainant to substantiate  his claim that he agreed a double on-call allowance of €10,404 compared to the sum of €5,202 which is stated on the payroll form.

The evidence submitted by the respondent supports its position that an administrative mistake was made in the payment of the annual on-call allowance of €5,202.  Instead of being paid the sum of €199.39 fortnightly, the complainant was paid this amount weekly.  IPS employees are normally paid fortnightly, but prison doctors are paid weekly.  This led to the over-payment which was rectified after the FEMPI cuts were implemented in 2010.

The EAT decision referred to by the complainant (footnote 2) dealt with the issue of whether the complainant ought to have been paid for 39 hours a week, or, on a pro-rata basis, relative to attendance in the prison.  In its determination, the EAT held that,

“From the outset, it appears to the Tribunal that there remains a contractual issue between the parties that cannot be resolved in this case.”

The respondent submitted that, on the date of the hearing of this complaint, November 4th 2021, the matter is still not resolved.  The EAT further stated:

What appears to have happened is that, because the IPS failed to clarify the appellant’s terms and conditions of employment in 2006 on his return to Cloverhill Prison, he was placed on locum rates and remained thereon.

In his submission on behalf of the respondent, Mr Gibbons suggested that the complainant “hugs the EAT as a precedent but ignores the key distinguishing feature of that decision (which the IPS has complied with) and the present complaint.”  The key distinguishing feature is the reference to the complainant being placed on locum rate of pay.  Mr Gibbons pointed out that locum doctors in the IPS are not paid an on-call allowance.  The on-call allowance paid to the complainant was on the premise that he was employed as a full-time prison doctor in accordance with the template contract.  Mr Gibbons said that it is extraordinary that the complainant now submits that he was not governed by the 2004 template contract, or the rates paid to locum doctors, but that he had a bespoke contract, not reduced to writing but which was “so micro-detailed” that it governed the payment of double the on-call allowance.  This verbal contract, which was allegedly agreed with former Governor Dowling and not reduced to writing, is according to the respondent, not true and wholly denied.

Mr Gibbons submitted that it is of interest to the present matter that the complainant never raised a formal complaint before the WRC or its predecessor, the Rights Commissioner’s service, when the over-payment of the on-call allowance was corrected in August 2010.  Years passed without any formal complaint and Mr Gibbons submitted that these complaints under section 6 of the Payment of Wages Act are statute-barred.  Also, when he filed his original complaints to the EAT in 2015 concerning deductions in wages that arose after 2010, he did not make a complaint about the reduction in the on-call allowance.  He said that he thought the IMO was dealing with this.  He was formally represented at the EAT by the IMO and by senior counsel.  Given that the parties were the same and that the issues were over-lapping, Mr Gibbons submitted that it was incumbent on the complainant to raise the issue of the reduction in the on-call allowance before the EAT at the hearings on May 26th and November 30th 2016 and on January 31st 2017.

On the basis of the rule in Henderson v Henderson[4], Mr Gibbons argued that the current complaints should be dismissed.  In their decision of February 2021 in Unite the Union v McFadden[5], the three judges at the UK Court of Appeal held that where a statute has created a specific jurisdiction to determine any issue which established the existence of a legal right, the principal of res judicata applies to give finality to that determination.  Mr Gibbons submitted that when one considers the entirety and longevity of this dispute and the fact that the complainant had an opportunity to ventilate his complaints regarding the on-call allowance during the EAT hearing, but failed to do so, that it is “appropriate and just that the present complaints be dismissed.”

If I decide not to exercise the discretion demonstrated in Henderson, and if I proceed to enquire into this complaint, then, Mr Gibbons asserted that the complainant has failed to substantiate his claim that he has an “individualised” employment contract.  Although not reduced to writing and flatly denied by Mr Dowling, the complainant claims that the terms and conditions “all bounce in his favour.”  My task is not to consider all the components of the contract, but only the on-call allowance.  In this regard, the respondent submits that the over-payments were corrected in August 2010 and were not recouped by the IPS, although it was lawfully entitled to do so.  Instead, the complainant was placed on the correct rate from that point onwards.

Mr Gibbons referred in his submission to an email from the IPS payroll to a member of the HR Directorate in the IPS dated February 15th 2007, in which the payroll officer requested information to facilitate the set-up of the complainant on the payroll.  This email was the subject of some dispute at the hearing and I will address the conflict in the next section under the heading, “Findings and Conclusions.” 

Evidence of the Former Governor of Cloverhill Prison, Mr Liam Dowling

In addition to his evidence at the hearing, Mr Dowling submitted a witness statement in advance of the hearing.

Mr Dowling said that he was the prison governor in Cloverhill between 2004 and 2007.  The prison had one full-time and two part-time doctors and they had to rely on locums to cover gaps in the roster.  The complainant worked as a locum doctor from January to November 2006 and Mr Dowling said that he was very happy with his service.  When he was finishing up, Mr Dowling said that the complainant left him his phone number, telling him that he would be interested in returning to Cloverhill if work was available.  When the full-time doctor resigned suddenly after Christmas 2006, Mr Dowling said that he phoned the complainant.

Mr Dowling said that he was not in a position to offer the complainant any concessions or inducements to return to Cloverhill.  He said that he had two or three phone calls with him lasting five or six minutes.  Mr Dowling said, “all I could offer him was the option to apply for the job.”  If the complainant came back and if he was successful in getting the permanent job, Mr Dowling said that the complainant’s conditions would have improved 100% compared to working as a locum.  He would have been entitled to 42 days’ holidays and sick leave, and all the other terms of the 2004 contract.  Mr Dowling said that he expected the complainant to apply for and to be offered the permanent position.

During their two or three phone calls, Mr Dowling said that most of their discussion was about the issue of a work permit.  He said that he indicated to the complainant that he would process an application for him to the Department of Enterprise and Employment to secure a work permit, which he did, following the complainant’s agreement to return.

Mr Dowling said that the subject of the allowance never arose.  The conditions of a full-time prison doctor are very attractive.  The complainant had worked as a locum and Mr Dowling said that he wanted to try to get him back to Ireland by offering him the conditions attaching to the permanent job, and then allow the permanent post to be advertised, in the expectation that he would get the job.

Having worked as a locum for 10 months in 2006, the complainant returned to Cloverhill on January 22nd 2007.  Mr Dowling said that he wanted to regularise and improve his working conditions.  On January 31st, he sent an email to the HR and Clinical Directorate seeking to have the complainant placed on a temporary six-month contract pending the organising of the competition to fill the post on a permanent basis.  While there was no guarantee that he would get the job, Mr Dowling said that he had a reasonable expectation that he had a good chance of succeeding in an open competition.  The prison’s clinical director, Dr Enda Dooley, supported Mr Dowling’s proposal to offer the complainant a six-month contract.  In his witness statement, Mr Dowling wrote

“My rationale in recommending the six months temporary contract was to give him entitlements in the interim (i.e. annual leave – sick leave) enjoyed by all similar medical officers employed across the IPS systems; none of these entitlements were afforded to him while acting as a locum on behalf of Locumotion.”

Concluding his evidence, Mr Dowling said that he rejects any allegations made by the complainant that he agreed to a double payment of the on-call allowance.

Cross-examining of Mr Dowling

In response to questions from Mr Smyth, Mr Dowling said that he never mentioned the 2004 contract to the complainant.  He said that the didn’t offer him any contract.  He was filling a vacant position on a temporary basis, until the job was advertised, and Mr Dowling said that he expected him to be successful.  Mr Dowling said that he asked for the complainant to be given a six-month contract.  He then moved to Arbour Hill Prison and he wasn’t involved afterwards.  He said that the only terms and conditions he discussed with the complainant was the possibility that he would get the permanent job.  He said that he couldn’t offer him anything above what any other doctor was on.

Mr Smyth said that there is evidence that the complainant was on better terms than the 2004 contract, and Mr Dowling replied that he wasn’t involved in offering any enhanced terms.  Accepting that the EAT found that the complainant’s terms are different to the 2004 contract, Mr Dowling said that he didn’t agree to the complainant being offered different terms.

Mr Dowling said that he totally refutes the complainant’s evidence that he offered him double the on-call allowance when he was discussing his return to work in Cloverhill in January 2007.  

Evidence of Tom Doyle, Higher Executive Officer in the HR Directorate

In addition to his evidence at the hearing, Mr Doyle also submitted a witness statement.

In response to questions from Mr Gibbons, Mr Doyle said that he is a higher executive officer in the HR Directorate of the IPS.  From 2015 to 2019, he worked in the pay and pensions section.

Mr Doyle said he became aware of this dispute at the end of March 2021.  He said that he queried the issue with the civilian payroll office, which is based in Killarney.  It then came to light that, from January 22nd 2007 until July 31st 2010, the complainant was paid the on-call allowance at the rate of €5,202 divided by 26.09 (€199.39) rather than being divided by 52.18 (€99.69).*  As the complainant was paid weekly, this was effectively a double payment.  Mr Doyle said that whoever inputted the rate of the on-call allowance when the complainant was being set up on the payroll, assumed that he was paid fortnightly.  When the FEMPI cuts were being applied in August 2010, the payroll system reduced the complainant’s allowance to the weekly rate of €94.71, from €99.69.

Mr Doyle said that there is no instruction anywhere to pay the complainant a weekly allowance of €199.39.  He referred to the payroll set-up form which was completed for the complainant in February 2007, a copy of which was included in the respondent’s book of papers.  Beside the on-call allowance of €5,202, a member of the civilian payroll section inserted in hand-writing, “value €199.39.”  This is the fortnightly value of €5,202, rather than the weekly rate of €99.69  Most IPS staff are paid fortnightly, and Mr Doyle said that he presumes that the error occurred because prison doctors are paid weekly.  Until the error was rectified, the complainant was paid the fortnightly sum of €199.39 weekly.

In Mr Doyle’s written statement, he said that an email sent to him from the civilian payroll service on April 6th 2021 indicates that this is the only explanation for what occurred.  Mr Doyle said that it is his belief that the payment of double the on-call allowance resulted from a simple administrative error by the payroll service and there is no evidence whatsoever that it formed part of any alleged contract between the complainant and Cloverhill prison.

As a result of the reduction in public service pay from the end of 2009, the salary of prison doctors was reduced from €119,646 to €110,181 per annum and the on-call allowance was reduced from €5,202 to €4,943 (from €99.69 to €94.71 per week).  The salaries of prison doctors had not been increased since 2005 and discussions took place between the IMO and the IPS about the FEMPI reductions.  In the end, the reductions were implemented on August 5th 2010, and back-dated to January 1st 2010.  This resulted in an over-payment of salary and the on-call allowance from January to July 2010.  In August 2010, the payroll service reduced the complainant’s allowance to €94.71 per week from €199.39 per week.

Mr Doyle said that it appears that, at no stage, was it ever noted by the civilian payroll service that the complainant had been in receipt of double the allowance.  While the IPS arranged to recoup the over-payment of the wages and the allowance from January to July 2010, no attempt was made to recoup the over-payment of the on-call allowance for the three years from January 2007 until January 2010.

Cross-examining of Mr Tom Doyle

Mr Smyth referred to the email dated April 6th 2021 from the staff member in the civilian payroll service in which she said she is “certain” that the only explanation for the double on-call allowance is the fact that there was a mistake regarding the weekly / fortnightly pay frequency.  Mr Smyth asked Mr Doyle if it wasn’t unusual for the payroll service not to ask for the money back, when the issue was discovered in August 2010?  Mr Doyle said that the payroll system made the 50% cut automatically when the FEMPI cut was introduced.  He said that the error only came to the attention of the IPS in 2021.  He said that no one went to look for the over-payment.

Summary

Concluding his submission, Mr Gibbons said that Mr Doyle has explained how the on-call allowance which was paid to the complainant at a weekly rate of €199.39 was reduced in August 2010 to €94.71.  This was to take account of the 5% FEMPI reduction, but it rectified the double payment which was paid in error from January 2007.

The complainant’s position is that his terms were not based on the terms and conditions of locum doctors, or those of the 2004 template contract, but on something entirely different.  To establish an entitlement to double the on-call allowance, he must show that this was offered and accepted.  He has not shown this, and the proposition has been flatly denied by the former governor, Mr Dowling.

Mr Gibbons said that the error in the allowance was only spotted when the FEMPI cuts were implemented in August 2010.  The complainant chose not to argue his case at that point, because, Mr Gibbons asserted, it suited him not to do so.  He benefited from the mistake.

All along, the complainant has insisted that he is not bound by the IMO template contract, and, if this is his position, Mr Gibbons said that it is difficult to see why he didn’t submit a complaint in August 2010, when the allowance was reduced.  Referring to the time limit of six months for submitting a complaint under the Payment of Wages Act, Mr Gibbons argued that, by blaming the IMO for the delay, the complainant is “having it both ways.”  The complainant could have articulated this complaint at the three hearings at the EAT in 2016 and 2017.  Mr Gibbons submitted that it is grossly unfair on the IPS to have a full hearing of this complaint when the complainant could have articulated the matter sooner.  Mr Gibbons asked me to have regard to the decision in Henderson and to use my discretion to dismiss this complaint.  He cited the decision of Laffoy J in Trevor Webster v An Garda Síochána[6], which sets out the rule in Henderson. 

*To take account of the leap year occurring every four years, employees who are paid fortnightly have their annual salary and allowances divided by 26.09.  The salary of weekly-paid employees is divided by 52.18.

The Respondent’s Case that the Complaint Should be Dismissed

Relying on the rule in Henderson v Henderson (footnote 4), the respondent argues that the complaint should be dismissed because it was not raised at the hearings at the EAT in 2016/2017.  There is definite merit in this argument.  At the hearing of this complaint on November 4th 2021, Mr Smyth argued that “the fundamental issue in contention is the same.”  The subject-matter of the EAT hearings was a complaint about the reduction in wages based on the complainant’s working hours and, without any complication, this could have been joined with the complaint regarding the reduction in the on-call allowance.  The complainant claims that both matters were components of his “personalised contract;” but he provided no explanation as to why the reduction in the allowance was not aired at the EAT. 

The case of Trevor Webster v An Garda Síochána (footnote 6) contains a useful distinction between the Henderson rule and the related principle of “res judicata,” meaning that it has already been decided.  The section in the Webster decision is extracted from the explanation of Clarke J (as he was then) in Moffit v Agricultural Credit Corporation plc[7]:

Res judicata per se applies where the matter sought to be litigated has already been decided by a court of competent jurisdiction…. The rule in Henderson v. Henderson, on the other hand, applies where a new issue is raised which was not, therefore, decided in the previous proceedings but is one which the court determines could and should have been brought forward in the previous proceedings.

It is apparent from the evidence submitted at this hearing, that, while the matter before me could have been decided upon at an earlier hearing, it has not been decided upon.  While I have discretion to dismiss the complaint on the basis of the application of the rule in Henderson, the issue, in my view, is of sufficient importance to warrant a more solid outcome.

The Complainant’s Case that the Double Allowance is Part of his Personalised Contract

In May 2017, the EAT concluded that “there remains a contractual issue between the parties that cannot be resolved in this case.”  While I will confine my deliberations to the single matter of the reduction in the on-call allowance, this complaint is rooted in a dispute about the terms of the complainant’s contract, and some examination of the genesis of that dispute is required.

The first concrete evidence that former Governor Dowling sought to employ the complainant on a temporary contract is provided in an email he sent to the HR Directorate in the Prison Service on January 31st 2007.  The email is detailed and copied to three others in “HQ Prisons,” one of whom was the clinical director of prisons, Dr Enda Dooley.  Governor Dowling opened by explaining the background to his request for “a short-term contract” arising from the resignation of the permanent doctor.  After setting out the complainant’s exemplary service to the prison when he was a locum in 2006, Governor Dowling went on:

“Dr Moola returned to South Africa at the end of November 2006.  He had indicated that he would be interested in further work should it become available.  On the sudden departure of Dr (name withheld) I contacted Dr Moola to see if he was interested in a temporary full-time position pending the advertising and appointment of a new panel.  He expressed interest and I made the necessary application to the Department of Enterprise to secure a work permit for him.  This was approved and he returned to Cloverhill on the 22nd January to work at present on a week to week basis.  Locumotion endeavoured to seek a payment in the region of 20,000 euros (finders fee) which, following my intense discussion and objection to, they have decided not to pursue, thus incurring a further saving to the Irish Prison Service.  At present, Dr Moola is working week to week with us with no fixed contract and no conditions of pay agreed.  I am strongly recommending that pending the advertisement and filling of the full-time position that Dr Moola be given a temporary contract which will allow him annual leave and a salary of a full-time doctor.  This would also be hugely beneficial to Cloverhill Prison which has on average 100+ prisoners moving each day and it is essential for both medical and operational reasons that we have continuity which this proposal will give us.   In addition, there are no additional costs incurred in Locumotion fees which can be exorbitant.

“I would appreciate if this request could be processed as expeditiously as possible.  If any additional information is required, please contact the undersigned…”   

This proposal from Governor Dowling to give the complainant a temporary contract with the salary and holidays of a full-time doctor is consistent with his evidence that he didn’t offer him enhanced terms and he didn’t offer him double the on-call allowance when he spoke to him by telephone after Christmas in 2006.  In his email, he requested the HR officer to provide a contract to the complainant who was, at that point, “working week to week with us with no fixed contract and no conditions of pay agreed.”

In Governor Dowling’s email, there is a sense that, on the basis of the complainant’s satisfactory service in 2006 and the saving on agency fees, he was attempting to justify offering him a temporary contract on a permanent doctor’s terms and conditions.  He is proposing to offer the complainant a temporary position, but on the very reasonable salary and benefits of a permanent job.

In support of Governor Dowling’s proposal, Dr Dooley replied to the HR Directorate the following day:

“Further to discussion on this matter I would support the points made by the Governor below in relation to the value of the service provided by Dr Moola, particularly in light of the difficulties that have occurred in maintaining an adequate medical input into this prison.  In this context, I would support the Governor’s effort to place Dr Moola’s employment by the prison on a temporary basis pending the filling of the existing vacancies on a sustainable and legitimate basis.  Any temporary formalisation of this employment should, of course be subject to guidance and instruction from HR Directorate to ensure that the prison is operating within proper structures.  As previously indicated given the long-standing medical difficulties in this location and current vulnerability, I believe that the interests of the prison and the Service are best served at this time by this course of action.”

It is evident from this correspondence that, in his capacity as the Governor of Cloverhill, Mr Dowling sought the co-operation of the HR and Clinical Directorates to provide the complainant with a contract based on the terms that applied to permanent prison doctors.  The tone of Dr Dooley’s reply, in which he accepts that the offer of the temporary contract to the complainant should be “subject to guidance and instruction from HR Directorate” indicates further that neither he or the prison governor had authority to offer the complainant any terms outside the parameters of what was agreed between the IPS and the IMO. 

It is clear to me that Governor Dowling proposed that the complainant would be offered a temporary contract on permanent terms and conditions.  I am also satisfied that, if he had intended to provide the complainant with enhanced terms and conditions, or “personalised” terms and conditions, such as double the on-call allowance, he would have made that request in his email of January 31st 2007 to the HR Directorate.  I am satisfied that he did not offer the complainant double the allowance and that he did not intend for him to be paid double the allowance.

I do not accept the complainant’s evidence that he was offered “personalised” or “bespoke” terms or that he was offered double the allowance.  I have reached this conclusion for the following reasons:

Apart from his own assertion, there is no evidence of an agreement to pay double the allowance and all the evidence points to a decision to offer the complainant a temporary contract on the terms that applied to permanent doctors. 

The “hiring manager,” former Governor Dowling, had no authority to offer the complainant any benefit that was inconsistent with the terms of permanent prison doctors and I am satisfied that he did not do so. 

It would have made no sense for Governor Dowling to offer the complainant a temporary contract on enhanced terms, because this would have been a disincentive to the complainant taking up the permanent job, where the terms of the 2004 contract and the single rate of the on-call allowance would have applied.

If Governor Dowling had offered the complainant “personalised” or “bespoke” terms, this would have undermined the agreement between the IPS and the IMO with regard to the terms of other prison doctors. 

In August 2010, the complainant’s allowance was cut from €199.39 per week to €94.71.  If he was convinced that the double allowance was a contractual entitlement, it would have been a simple matter to contact Governor Dowling, who, at that point was the Governor of Arbour Hill Prison, to prevail upon him to notify the HR Directorate that he had agreed to pay him double the allowance.  The fact that he did not do so leads me to the conclusion that no such agreement existed.

In September 2011, more than a year after the cut in the allowance, in response to an offer from the IPS of a standard prison doctor’s contract, the complainant wrote a long letter to an official in the IMO.  In the letter, he referred to the fact that his allowance was “unilaterally cut by over 50% to €94.71.”  He did not state that he had an agreement with Governor Dowling regarding a double allowance, but said simply that the rates “do not reflect the current market rate.”

The Disputed Email of February 15th 2007

In February 2007, the complainant was set up on the payroll of the Prison Service.  The respondent’s side submitted a copy of an email to Governor Dowling from a staff member in the HR Directorate.  The email opens as follows:

“Governor,

“As discussed, to enable me to arrange temporary payment of salary to Dr Moola, pending formal agreement of his contract, I would appreciate if you would ask him to forward the following details at his earliest convenience.”

Below this text is a table to be filled in by the complainant, seeking his name and date of birth.  This is followed by a second table, seeking a variety of details which the complainant did not possess, such as payroll number, cost centre, grade, salary scale, point on scale, increment date and pension scheme number, among others.  This table shows that the complainant will be paid an annual on-call allowance of €5,202.  A third table included in the document asks for bank details, information to be filled in by the complainant. 

When I considered Mr Smyth’s correspondence to me the day after the hearing, I examined closely the related documents.  I am satisfied that the payroll summary form (the second table in the document) which shows that the on-call allowance was €5,202, was not included in the email of February 15th 2007 from the HR Directorate to Governor Dowling.  The document submitted in the respondent’s book of papers which gives that impression is a cobbling together of two separate documents and is not a true copy of the email.

The submission by the respondent’s side of an inauthentic document gives me some concern; however, I attribute this inaccurate presentation to the fact that this matter goes back to 2007, many people have been involved over the years, some of whom have moved on and payroll is outsourced to a shared services provider.  I am satisfied that the payroll set-up form is a genuine document.  I am further satisfied that it was not sent to Governor Dowling on February 15th 2007, but, that it was sent around the same time by the civilian payroll office to the IPS HR Directorate, so that the complainant’s salary and benefits could be captured for the purpose of paying his wages. 

The Reduction in the On-call Allowance from €199.39 to €94.71

This complaint was originally scheduled for a hearing on May 10th 2021 and the parties were notified of this on March 25th 2021.  The hearing scheduled for May 10th was postponed and a hearing eventually took place on November 4th 2021.  In his evidence, Tom Doyle, is a senior official in the HR Directorate, said that, in preparation for the hearing, he queried the complainant’s on-call payments with the civilian payroll office.  Documents submitted in evidence show that, on March 25th 2021, at 14.19, he sent an email to the civilian payroll office, in which he asked for assistance:

“I wonder can you check something for me….

“Dr Moola is in receipt of an on-call allowance of €94.71 per fortnight i.e. €2,462.46 pa according to our HRMS.  Can you check if this was ever in payment at a higher rate, or reduced, at any stage?  HRMS indicates that this has been the rate all along.”

There is an error in this email, which was subsequently clarified, because, on March 25th 2021, the complainant was in receipt of the allowance of €94.71 per week, and not per fortnight.

A staff member in the payroll office replied to Mr Doyle at 14.25 on the same day:

“This was paid at €199.39 from 22 Jan 2007 to 31 Dec 2009.”

Five minutes later, at 14.30, Mr Doyle followed up with a further question:

“Thanks…is there any record of the instruction for reducing it?  I presume it was linked to the pay cuts at the same time?  Also, am I right in saying he’s paid weekly and the €94 and €199 are weekly figures?”

The person in the payroll office replied that the complainant was paid weekly.  On March 29th 2021, she sent Mr Doyle a copy of correspondence dated August 5th 2010 between the HR Directorate and one of her colleagues in payroll.  In the correspondence, the HR officer stated (incorrectly) that the complainant was paid the on-call allowance of €5,202 until December 31st 2009 and that it was reduced to €4,942 on January 1st 2010.  It is apparent from this correspondence that, in August 2010, no one in the HR Directorate or in the payroll service was aware of any commitment to pay the complainant double the allowance (€10,404) and also, more critically, they did not know that he had, in fact, been paid double the allowance from January 2007 until August 2010.  The over-payment from January to August 2010 was recouped, but the over-payment of €5,202 a year for three years was not recouped.  It is clear that the reason that no action was taken regarding a repayment was because no one noticed the error.

On August 27th 2010, the complainant queried the reduction in his weekly allowance from €199.39 to €94.71.  He received back a copy of his payslip, which shows the allowance of €94.71, with a hand-written note “- 5%” and the name of the person in the HR Directorate who answered his query.  This further indicates to me that the HR Directorate were unaware that the complainant had been paid double the on-call allowance, and the person who responded to the query assumed that he was questioning the FEMPI reduction of 5%, and not the reduction from €199.39 to €94.71.  It is apparent therefore, that the complainant’s on-call allowance was reduced in August 2010, at the same time as the FEMPI cut, when the payroll office inputted the “new normal” amount of €94.71, without any regard for the fact that, until that date, he was paid double the allowance. 

There is no doubt and no dispute about the fact that, from January 2007 until December 2009, the complainant was paid double the on-call allowance and received weekly payments of €199.39 instead of €99.69.  From the evidence presented at the hearing, and, from the documents submitted by both sides, I have concluded that no one in HR or in the civilian payroll service was instructed to pay the complainant double the allowance.  I agree with the evidence of Tom Doyle who, in March 2021, after some enquiries, unearthed the mistake, and found that he was paid double the allowance as a result of the fortnightly value of the allowance, €199.39, being paid to him weekly. 

The Relevant Law

Section 1 of the Payment of Wages Act 1991 (“the Act”) sets out a definition of wages:

[W]ages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a)  any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, and,

(b)  any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

I am satisfied that this definition encompasses the on-call allowance paid to hospital doctors for being available to attend the prisons or to provide advice to other medical staff after normal working hours.

Section 5(6) of the Act provides that, to ground a claim under the Act, wages must be properly payable:

(6) 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 (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) 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.

At the hearing, Mr Smyth referred to High Court decision in 2017 in Petkus v Complete HighwayCare (footnote 3) where it was held that a reduction in wages, as opposed to a deduction, does not remove the issue from the jurisdiction of the Payment of Wages Act.  The case was remitted back to the former EAT for a determination.  A similar outcome emerged from the High Court in 2020, when the case of Marek Balans v Tesco Ireland Limited[8] was sent back to the Labour Court for a determination.  Taking account of the direction given by McGrath J in the High Court, before any decision could be reached regarding an illegal deduction, the Labour Court’s task was to determine if the hourly rate of €11.87 in the complainant’s contract of employment was properly payable.  Returning to the case in hand, before any consideration of whether there has been an illegal deduction from the complainant’s wages, my task is to consider if the double allowance is or was, properly payable.   

Is the Double Allowance Properly Payable?

Mr Balans was issued with a contract with an error in his hourly rate of pay.  There was no dispute that the hourly rate of €11.87 was a mistake, and that it wrongly included a 20% premium for working unsocial hours.  When he wasn’t paid the rate specified in his contract, Mr Balans claimed that there had been an unlawful deduction in his wages.

The complainant’s case is somewhat different, and, in some respects, opposite to that of Mr Balans, because he was paid an incorrect rate, which, I have concluded, was not specified in a contract of employment.  He claims that the discontinuation of the incorrect rate is an unlawful deduction.  While there is a clear difference between the two complaints, there is also an important similarity, because both employments are governed by a collective agreement.  Mr Balans’ employment was governed by a collective agreement between his union and Tesco Ireland which, in 2015, provided that his hourly rate of pay was €9.89.  In the complainant’s case, there is an agreement between the IPS and the IMO which provides that the rate of the on-call allowance for prison doctors is €5,202. 

Referring to the definition of wages at section 1 of the Act, in Marek Balans v Tesco Ireland Limited[9], the Labour Court stated:

It seems to the Court that if the Oireachtas had intended that the terms of a contract were the only factors to be taken into account when determining what is “properly payable” then this would have been reflected in the definition of wages set out in s.1.  However, that definition covers all factors referable to the employment and takes account of the contract “or otherwise.”

The Court concluded that what is properly payable has to be determined by the “totality of the circumstances referable to the employment.”  In the case of the complainant, the terms and conditions of his role are governed by an agreement between the Irish Prison Service and the Irish Medical Organisation and the agreed rate of the on-call allowance in from 2007 to 2009 was €5,202.

I have already concluded that there was no contractual agreement between the complainant and his employer to pay him double the on-call allowance.  To determine the amount of the allowance that is properly payable, I must rely on the agreement between the IMO and the IPS which provides for an annual on-call allowance for prison doctors of €5,202, equivalent to €99.69 (now €94.71) per week .  This is the amount that is properly payable and any sum in excess of this is not properly payable.

Conclusion

The reduction in the allowance paid to the complainant, from €199.39 per week to €94.71, coincided with the reductions imposed by the FEMPI legislation in August 2010.  It is possible that, if the FEMPI cuts had not been introduced, the double allowance error may have gone unnoticed for a long time.  In 2010, when the allowance was reduced to the correct amount, it seems that the complainant was the only person aware of the scale of the over-payment.  I am satisfied that the over-payment was as a result of the fact that, in 2007, there was an assumption in the HR Directorate that, like most public servants, the complainant was paid fortnightly, and that he was entitled to an allowance of €199.39 fortnightly.  When he was set up on the weekly payroll, the allowance of €199.39 was paid weekly. 

From the commencement of his employment in January 2007, until the back-dated reduction in the allowance with effect from January 2010, the complainant was paid an allowance of €199.39 per week, when the properly payable amount was €99.69 per week.  As the double allowance was not properly payable, it is evident that, from January 2007 until December 2009, the complainant was over-paid by €15,000.  I am satisfied therefore, that there has been no illegal deduction from the complainant’s wages and that, since January 1st 2010, he is paid the correct weekly allowance of €94.71.

Based on the conclusions I have set out above, I find that there has been no contravention of the Payment of Wages Act 1991 and I decide that each of the 22 complaints listed on pages 1- 3 of this document are not well founded.

On-call allowance, deduction, wages properly payable