Worker

Employer

Anonymised Parties

Staff Nurse

Disability Services Provider

Representatives

Barnaba Dorda SIPTU

Triona Cody O'Mara Geraghty McCourt

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000428

04/07/2022

The worker was place on paid leave pending the outcome of a Trust in Care Investigation from May 2021 until June 2022. Her employer paid her basic salary but not payment for the weekends that she would normally be rostered.  She is claiming payment for those weekends.  The employer refutes that she is entitled to any payment.  The employer also submits that the Adjudication Officer does not have jurisdiction to deal with this dispute as the dispute relates to a rate of pay.

The worker was employed as a staff nurse by the employer.  In May 2021 the worker was placed on administrative leave with pay and without prejudice pending the outcome of an investigation under the employer’s Trust in Care Policy.  This investigation continued until June 2022.  The worker was only paid her basic salary.  The worker would normally work every second weekend and receive the appropriate premium payments.  The worker was not paid for 13 weekends and would normally receive the sum of €302.97 resulting in a total loss of €23938.61. The reality is that had the worker not been placed on administrative leave by the employer she would have worked these weekends.

It was submitted on behalf of the worker that by not paying this money she was punished by the employer and suffered financial consequences as a result.  The worker’s representative also submitted that the employer’s disciplinary procedures describe suspension as “a precautionary measure and not a disciplinary sanction.” 

It was submitted on behalf of the worker the this is an appropriate case to take under the Industrial Relations Act.  This is clearly an individual dispute and does not encompass a body of workers.  It also does not involve the setting of any pay rate. 

It was submitted on behalf of the employer that the Adjudication Officer does not have jurisdiction to deal with this complaint as it related to pay.  This matter does not constitute a trade dispute.

The employer submits that the worker was employed as a staff nurse and was suspended in May 2021 as the worker was the subject of a Trust in Care Investigation.  While on suspension she was paid all her waged, annual leave and the pandemic special payment.  There are no further payments due to the worker.

It was submitted on behalf of the employer that the worker is not entitled to be paid the weekend allowances during her period of suspension as she was not actually working on Saturdays or Sundays.  This is in line with practice in the sector and consistent with the practice of the employer in such situations.  There is a long-standing practice that allowances are only paid when the days are actually worked.  The employer has never deviated from this practice.

In conducting my investigation, I have taken into account all relevant subm0issions presented to me by the parties.

The employer raised a preliminary point in relation to jurisdiction under Section 13 of the Industrial Relations Act as the workers dispute concerns pay.  Section 13 of the Act does not permit an Adjudication Officer to investigate a trade dispute connected with rates of pay, hours or times of work, or annual holidays of a body of workers.  The employer’s representative submits that this complaint does not amount to a trade dispute within the meaning of the Act.

A Trade Dispute is defined by S.3 of the Industrial Relations Act 1946 (as amended by the S.40 of the Industrial Relations (Amendment) Act 2015:

“The expression ‘trade dispute’ means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, or any person and includes such dispute or difference between employers and workers where the employment has ceased”.

I am satisfied that the dispute does not encompass a rate of pay for the worker.  The worker is seeking to have the payment which would ordinarily have been due to her to be paid.  I am also satisfied that this dispute falls within the meaning of a trade dispute.  It is concerned with the application of the employer’s disciplinary policy while the worker was on paid administrative leave.

An Adjudication Officer cannot investigate a trade dispute if one party objects in writing. I note that the employer was advised by the WRC on 07/09/2022:

“In so far as the request for an investigation by a Workplace Relations Commission Adjudicator under Section 13 of the Industrial Relations Act 1969, into the above trade dispute is concerned, please note that under Section 36(1) of the Industrial Relations Act 1990, any party has the right to object to an investigation of this dispute by an Adjudication Officer”.  There was no objection received in writing from the employer.

I am satisfied that the worker’s representative raised this dispute at local level prior to a referral to the WRC.

I am also satisfied that the claimant is a worker for the purposes of the Industrial Relations Acts and in view of the above I therefore do have jurisdiction to investigate the substance of the matter.

This dispute concerns the employer’s application of their disciplinary policy which resulted in the worker being placed on paid administrative leave pending the outcome of a Trust in Care investigation.  The worker was placed on this leave in May 2021 and ended in June 2022 when the worker resigned.

While on administrative leave the worker was not paid for any weekends that she would ordinarily have worked but for the fact that the employer placed her on leave.

The Trust in Care Policy allows for an employer to put “the staff member off duty with pay pending the outcome of the investigation”.  The policy also notes that this should only be “reserved for only the most exceptional circumstances”.  In line with the usual procedures this policy reinforces the principle that “the decision to put him/her off duty is a precautionary measure and not a disciplinary sanction”.

The employer’s disciplinary policy has a similar provision: “The employee may be suspended with pay [put off duty with pay] pending the outcome of the investigation.  Suspension with pay is a precautionary measure and not a disciplinary sanction.  Suspension will only be imposed after careful consideration and alternative measures, such as reassigning the employee to suitable alternative duties pending the outcome of the investigation, will be considered”.

The employer in this case outlined that it is not their practice to pay premium payments when a worker is on administrative leave and that they hold steadfast to the principle that a worker must actually work the hours prior to any payment being made.  

The worker’s representative submits that by not paying the worker the payments which she would have received were she not on administrative leave this had a negative impact on her earnings and this “could not only be described in any other way as simply additional punishment”.

Having considered this matter there is a long-standing industrial relation understanding that when a worker is placed on administrative leave [suspension] they should be treated in all respects as if they were still at work but not actually working.  The worker in this case was not treated in that manner and the employer did not distinguish between payments while on statutory leave and administrative leave.  

I am recommending that the employer pay the worker the sum of €3,938.61 which is equivalent to the thirteen weekends that she did not receive payment for.

Payment while on paid administrative leave