Complainant

Respondent

Parties

Michael  Moore

HSE Mid-West / UL Hospitals Group

Representatives

Patrick Nicholas, BL, instructed by Martin Tynan O’Donovan Solicitors

 Business Manager HR

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046351-001

22/09/2021

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

CA-00046351-002

22/09/2021

The Complainant commenced his employment with the Respondent on 2nd April 1986. He is paid €687.50 gross weekly and works 39 hours a week.

He referred his complaints to the Director General of the WRC on 22nd September 2021.

In his WRC referral form, the Complainant submitted that he is owed approximately 1,154 hours of holiday pay. This figure was altered at the adjudication hearing to 1,139.5 hours.

At the adjudication hearing, the Complainant’s representative submitted as follows.

The Complainant was entitled to 249 hours of annual leave per annum as per his contract. He was only allowed to take leave when there was someone to cover for him during his absence. In practice, that was not possible. The Complainant raised the matter with management, but nothing was done. Mr Nicholas, BL argued that the Complainant is entitled to the accumulated annual leave.

The issue was subject to negotiations by the Complainant’s Union from 2016 onwards where discussions took place to backdate the outstanding entitlements to 7 years. It is argued that the Complainant was not aware of that agreement, and it could not be treated as a standalone concession as it formed a part of wider negotiations. 

The Complainant’s representative was given the opportunity to review annual leave calculations furnished post-hearing and conceded that a figure of 725 hours is acceptable.

The Complainant’s direct evidence

The Complainant said at the adjudication hearing that he was entitled to 249 hours of annual leave but any time he asked for leave, he was asked who would cover for him. As there was no cover, he would not get his full annual leave.

The Complainant said that he had complained about the matter to his Manager who said that there is nothing he could do.

The Complainant said that he kept track of his own hours. In 2016 he also spoke with an employee of HR Department of the Respondent who printed the holiday log for him.

The Complainant noted that the matter has been subject to negotiations between the Unions and management since 2016. He said that since 2016 some changes were introduced. The Complainant contended that he was informed that the 7 years’ backpay was only to start off and not the limit of the back payment. 

The Respondent submits that the matter of annual leave was under review through the WRC conciliation process commencing in 2018 and that the process did not conclude in its entirety as not all staff were in agreement. The Respondent submits that the Complainant, through his union rep, accepted that a balance owed was to be paid in part and taken in part. However, as the process did not conclude thus the annual leave balance carried forward continued to accrue.

The Respondent submits that there has been a change in management recently and the matter remains under review.

The Respondent confirmed that its annual leave year runs from the 1st April to the 31st March and agreed that all untaken annual leave is carried forward and accrued.

The Respondent submits that its review of records to date shows that there has been no annual leave carried forward as of 1st April 2009 and from that date the Complainant accrued 297.78 hours of annual leave and the Respondent is agreeable to pay same.

At the adjudication hearing, the Respondent clarified that the Complainant’s entitlement is 23 days of leave at 7.8 hours and 9 public holidays at 7.8 hours totalling 249.60 hours per annum.

Post-hearing, the Respondent, on the request of the Adjudication Officer, furnished records of annual leave taken by the Complainant including: 1. Copy of Annual leave cards 2009-2021 2. Copy of SAP record 2005-2021 3. calculation through both methods A/L cards and SAP record. Calculations as per annual leave cards showed accrued leave of 677.18 hours, while calculations as per SAP report showed accrued leave of 775.18 hours.

The Respondent noted there are changes on the annual leave card that are not reflected on SAP, which can occur when leave is cancelled, changed, etc. by the employee and perhaps it was not reflected in the system. In that regard the Respondent would deem the annual leave card the more accurate record.

The relevant law

Section 19 of the Act provides as follows

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

20. Times and pay for annual leave

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

The Complainant is seeking retrospection concerning annual contractual entitlement for 32 days compromising of 23 days of annual leave and 9 days of public holidays that are given as additional days of annual leave. The Act provides for statutory annual leave of 4 weeks or 20 days and 9 public holidays.

Section 27 of the Act provides that an employee, or any trade union of which the employee is a member, may present a complaint to an Adjudication Officer that the employer contravened a ‘relevant provision’ of the Act.

While the Act does not preclude the parties from entering into more favourable arrangements,  “this does not mean, however, that any enhanced terms so provided are recoverable by the enforcement procedures established by the Act. An agreement may provide a valid and subsisting entitlement, in industrial relations terms, over and above that created by the Act, but the Act does not allow the Rights Commissioner, or the Court on appeal, to substitute the terms of an agreement for those of the Regulations in deciding if a relevant provision of the Act has been contravened.” (see Ocean Manpower Ltd v Marine v Port and v General Workers' Union, DWT 981).

The Respondent conceded that annual leave entitlements (including additional leave in respect of public holidays) have not been given to the Complainant in full and the Complainant was permitted to carry over the accrued entitlement. The Respondent was agreeable to rectifying the matter. However, the entitlement due to the Complainant was disputed.

The parties furnished three different records of the leave accrued and taken that varied significantly. The Complainant exhibited a printout of annual leave taken in the period from 2005 to 2016 which he obtained from the Respondent. The Respondent produced two different sets of calculations, one based on manual record with copies of “Application for annual leave” forms for the period 2009-2022 provided which showed 677.18 hours of outstanding leave, and the other based on the SAP system that showed 775.18 hours of outstanding leave. I note that the Respondent asserted that the annual leave cards records are deemed to be more accurate as they reflect any changes that could have occurred if the leave was cancelled or changed by the employee, and the changes were not reflected in the SAP system.

The Complainant’s representative was given an opportunity to review the Respondent’s calculations and accepted the figure of 725 hours, albeit no clarification was offered as to how this figure was arrived with.

Having carefully reviewed all the records that were made available to me, and in the absence of one reliable record, I have come to the conclusion that the SAP record is more credible for the following reasons. Firstly, the manual application form requires two signatures, one of the person recommending, and one of the person authorising leave. I note that only one of the 16 forms was signed by the same person recommending and authorising leave. Secondly, the records provided by the Complainant correspond to a large extent with the SAP record provided by the Respondent.

On that basis, I find that the Complainant’s statutory annual leave entitlement is 20 days at 7.8 hours in respect of annual leave and 9 days at 7.8 hours in respect of public holidays entitlements added to his annual leave, totalling 226.20 hours per annum. The within complaint was referred to the WRC on 22nd September 2021 and, therefore, in the leave year 2021-2022 the Complainant would have accrued entitlement to 4 public holidays and approximately 10 days of annual leave.

The leave accrued totals 403.90 hours.

I declare this complaint to be well founded and I require the Respondent to discharge its obligation to 403.90 hours of statutory leave accrued by the Complainant.

In addition, I require the Respondent to pay the Complainant compensation of €10,000 for breach of the Act. In measuring the amount of compensation that is just and equitable having regard to all the circumstances I have taken account of the gravity of the infringements and the sustained nature of those infringements. In Von Colson & Kamann v Land Nordhein-Westfalen [1984] ECR 1891 the CJEU has made it clear that the redress provided should not only compensate for economic loss sustained but must also be  ensure that it is effective and that it has a deterrent effect.

In his WRC referral form the Complainant claimed that his employer has not paid him or has paid him less than the amount due to him. The Complainant did not provide the date on which he should have received the payment or the value of the payment.

The Complainant’s representative submitted at the adjudication hearing that the complaint is not about the current position but about the past. The Complainant was performing work that would de facto justify band 3, he had a colleague performing similar work on band 3. The Complainant was not given band 3 because of the moratorium that came in in the meantime.

Counsel for the Complainant noted the time limits applicable but argued that the Complainant was not aware that he was given a temporary assignment. He refused to sign the relevant form once he realised it was a temporary assignment form.

In his direct evidence at the adjudication hearing, the Complainant submitted that he started his employment at band 4. He said that in or around 2006, negotiations took place to put theatre porters on band 3. In 2007 he was advised to apply for band 3. He submitted that thereafter the moratorium came in and everything was put on hold. He argued that he is performing duties outside the normal porter duties. He said that this was never disputed by the management and he was told that he was entitled to band 3. However, an issue arose between SIPTU and the Respondent as to what the duties of a porter are. The Complainant made a reference to “a girl” who worked with him and got the band 3 but he did not. The Complainant noted that in 2018 he was put on band 3 on a temporary basis. He argued that he did not know it was temporary and for that reason he refused to sign the form. He was offered a permanent band 3 position in 2020.

The Respondent submits that the Complainant secured a post as a band 3 MTA on a temporary higher appointment basis on 6th March 2018. This involved annual completion of a HR form 103 to ensure payment at a higher rate. The Complainant completed same in 2018, 2019 and 2020 for the period 6th March 2018 - 6th March 2019, 7th March 2019 - 6th March 2020 and 7th March 2020 – 7th March 2021 respectively.

The Complainant failed to sign his HR103 form in March 2021 to extend his temporary higher appointment for a further year – period 9th March 2021- 8th March 2022. Thus, at that point he reverted to band 4 payment.

During this period circular 068/2020 regularisation was approved to appoint the Complainant to this post on a permanent basis. In order to process this regularisation under the terms of the circular HR form 102 required completion. As a consequence, this would also action retrospective pay back to 6th March 2018 in the absence of the HR103 form being completed at that time. It is noted that the Complainant was paid correctly as a band 3 MTA from 6th March 2018 to 5th March 2021.

The Respondent notes that the Complainant has been contacted on several occasions to conclude this matter and resolve his pay query. However, he declined to sign the relevant paperwork to action same on his payroll record. Relevant correspondence was exhibited at the adjudication hearing, most recent dated 3rd February 2022.

The Respondent submits that it is agreeable to action permanency of the MTA band 3 post on receipt of the correctly signed HR 102 form in line with the HR Process. This will ensure retrospective payback to the revert date of 8th March 2021,

The Respondent notes that whilst on leave, the Complainant has been non-compliant with providing certification under the managing attendance policy and thus is returned for unauthorised leave since 26th August 2021.

The Respondent submits that the Complainant has not engaged fully with management despite several attempts to resolve these matters. The Complainant did not raise his grievance locally prior to referring this matter to the WRC, nor did he opt for mediation. This would not be in spirit of the HR engagement process.

The definition of wages under the Section 1(1) of the Payment of Wages Act, 1991 provides as follows:

“wages”, 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,”

I note that in the case Sullivan v Department of Education [1998] E.L.R. 217 the Employment Appeals Tribunal took the word “payable” to mean “properly payable”, i.e. all sums to which an employee is properly entitled.

In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant.

The Complainant referred his claim to the Director General of the WRC on 22nd September 2021 alleging that his employer has not paid him or has paid him less than the amount due to him. The Complainant argued that, due to the nature of the duties he carried out he should have been paid the salary applicable to Band 3 and not Band 4.

This matter was referred under the Payment of Wages Act, the provisions and scope of which is limited by the clear definitions and purpose as set out in the Act. Accordingly, I must confine my adjudication to the requirements of that Act.

There was no dispute that the Complainant commenced his employment with the Respondent as Band 4 porter in 1986. He signed HR 103 “Temporary Appointment” forms for the periods 6th March 2018 - 6th March 2019, 7th March 2019 - 6th March 2020 and 7th March 2020 - 7th March 2021 when he was appointed to Band 3. He was paid the correct salary for the period of his appointment to Band 3. The Complainant did not sign the relevant forms thereafter.

 It appears that what the Complainant is seeking from these proceedings is a decision in respect of job evaluation and regularisation of his post. There is no provision under the Act to do so.

I declare this complaint to be not well founded.

Annual leave – job evaluation -