Complainant

Respondent

Parties

 Prof Tony  O'Brien

HSE (title amended on consent)

Representatives

  Appeared In Person

 David Mc Carthy, Industrial Relations/ Employee Relations Manager

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-00047021-001

07/11/2021

 On November 7, 2021, the Complainant, then a practicing Consultant Physician in Palliative Medicine raised a complaint with the WRC under the Payment of Wages Act, 1991.

At that time, the Complaint introduced himself as a Litigant in Person and he expressed an interest in securing Mediation in his dispute.

The Respondent is a Public Body, which operates the Irish Health Service.

Both Parties took time to prepare their submissions in the case. The Complainant submitted a comprehensive chronology on the background to his claim and identified a resolution mechanism.

The HSE also submitted a comprehensive chronology on the background to the claim and had endeavored to resolve the matter directly with the complainant prehearing.

Both Parties attended hearing on the morning of October 28, 2022. The Complainant presented as a Litigant in Person. The Respondent was represented by their Industrial / Employee Relations Manager, Mr. David Mc Carthy.

A duplicate claim ADJ 36188 was closed on that day.

The Complainant outlined that he had been a Consultant Physician in Palliative Care, who held a joint appointment at Marymount University Hospital; / Hospice and the South-Southwest Hospital group since 1991. The Respondent held authority for administration of salary but not clinical governance.

The Complainant signed a new contract in 1998, which contained a provision on Historic Rest days.

The HSE / IMO received LCR 20403 in November 2012. The Complainant submitted that his entitlement to leave relating to historic rest days diminished to 9 months at that point.

During July 2021, The Complainant gave notice of his intention to avail of this provision to coincide with a real time planned retirement date of April 1,2022.

 A dispute subsequently arose, where the Respondent interpreted that the standard retirement date, based on 187.5 days would fall on March 19, 2022. The Complainant submitted the details behind the variance in both dates and recorded a strong disagreement with the respondent calculations and requested recognition for a retirement date of March 18, 2022, to reflect an accurate interpretation of the interface of the historic rest days to April 1, 2022.

The Complainant received an offer to resolve the claim by means of a letter dated October 24, 2022. Inter party communication followed, but no resolution was recorded.

The Complainant came to hearing keen to resolve the matter. He expressed a profound disappointment on how he had been treated in the pursuance of what he understand was a strict entitlement.

The Respondent came to hearing with a strongly stated objective that they wished to resolve the matter to the satisfaction of the Complainant.

In response to the Complainant reminding the Respondent that he had elected to try Mediation much earlier, the Respondent replied that changes had occurred in their Medical Manpower Team, and they had missed the invitation to Mediation.

Mr Mc Carthy shared a copy of the Respondent submission prehearing, which he had shared with the complainant the day previously.

The Respondent had not discussed the proposed resolution directly with the Complainant prehearing. Instead, letters had been exchanged between the Parties.

I have been requested to make a decision in this case in accordance with the Payment of Wages Act, 1991.

In seeking to reach my decision, I am obliged to hold a hearing to inquire into the matter and to allow both parties an opportunity to be heard.

All complainants and respondents are welcomed as Parties to WRC. However, in the case of a Lay Litigant, structuring a hearing to ensure “an equality of arms “becomes a very important tenet of a fair hearing.

As I explained to the Parties, I hold no role in constructing or concluding an agreement at Adjudication, but it is open to the Parties at any time pre, during or post hearing to arrive at a mutual agreement in a case. This normally results in a recorded settlement and eventual withdrawal of the claim.

The trajectory of this case took a slightly more circuitous route on this occasion.

The Respondent took an innovative step of sharing a tabled offer with the Complainant prehearing

This normally results in a complainant and their representative engaging on the suitability of the offer for settlement and the parties normally have separate engagements prehearing outside of the WRC process. This did not happen in this case.

When I met the Parties prehearing, I inquired on the status of the settlement offer. I learned that the offer had not concluded in settlement.

I proposed that the Parties might wish to avail of the safety of the WRC office to have bi lateral discussions on the issue, without prejudice to the hearing running as planned.

Both Parties were agreeable to these discussions, and I vacated the hearing room to allow the Parties to engage.

I returned sometime later and recorded a formula of words tabled by the Parties as forming a decision on consent.

I scribed that decision and forwarded it to the Parties that evening in draft format once again mindful of the “equality of arms principle “I wanted the Parties to be certain this was a Decision on consent.

Both Parties recorded their agreement with this Decision on consent. The Respondent on the afternoon of November 3, 2022, and the Complainant on the morning of November 4, 2022.

I would like to acknowledge how both Parties conducted themselves at this process and I thank them for taking the time out to explore an option of resolution and move forward in the case, while honouring the timelines agreed.

I wish the Parties all the best for the future.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

The Parties have both confirmed their mutual agreement to the following formula of words as forming a Decision on consent in this claim under the Payment of Wages Act, 1991.

I wish to acknowledge the positive contribution made by both Parties to this formulation. I wish the Parties all the very best in a speedy resolution.

I now record that Decision on consent for the Parties.

1 The HSE has confirmed that the claim made for recognition of Prof O’Brien’s retirement date is hereby adjusted to reflect April 1,2022. The claim is conceded in full and final settlement of the matter. A reconciliation exercise will now follow so as to incorporate a prioritisation of all personal pension matters inclusive of the alignment of April 1, 2022, within 4 weeks of this mutually agreed decision.

2 The HSE has shared an apology with Prof O’Brien in respect of the timeframe expended in resolving the matter.

3 The HSE fully accepts both the Consultant contract 1998 (historical rest days) and the application of section 5(d) HSE Memo dated 6 December ,2012.

Interface of Historic Rest days with Date of Retirement