Complainant

Respondent

Parties

Cillian O’Sullivan

HSE University Hospital Group Limerick

Representatives

  Self

Jacqueline Nix, Assistant National Director Catherine Birkhead, HR Business Manager

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-00048524-001

08/02/2022

The Complainant referred his claim to the Director General of the WRC on 8 February 2022 alleging that the Respondent made an unlawful deduction from his wages.

The Respondent rejects the claim.

The Complainant submits that he commenced his employment with the Respondent in July 2009 on a specific purpose contract.

The Complainant asserts that he received a notice from the Respondent that it was looking to redeploy staff to front line positions. The Complainant submits that he applied for some of these roles but he was told that he would receive a phone call over Christmas break as to where he was to move to and to make sure that he had enough of holidays to bring him up to the 4 January 2010.

The Complainant submits that he received a phone call to say that he was allocated shift work in the ED Department. The Complainant then received a new contract changing his salary scale. The Complainant refused to sign the contract as the dates and the salary were incorrect.

The Complainant believes that he was redeployed as there was a moratorium on the hiring of new staff in the Respondent organisation at the time. The Complainant submits that if he was let go from his previous role, he should have been allowed to attend interview for the other roles.

The Complainant submits that, since moving to the new role, he was at a loss of approx.€6,000 per annum.

The Complainant submits that on the first day in his new role, he started his grievance procedure but nothing was ever recorded by the Respondent until 2021 when he got the opportunity to submit it again and it was documented.

The Complainant submits that he was sorry that it has taken this amount of time for his complaint to come through but he has been pursuing this for over 10 years and the first part was to make sure that he had gone through the correct procedure with the Respondent and then refer the claim to the WRC.

The Complainant submits that during the grievance process he pointed out the treatment he received before and after moving. The Complainant went for numerous interviews and has had the interview marking sheet filled out approx. 10 days after the interview took place. He has also applied for the job evaluation scheme and was told that he could not apply and had to appeal this decision as it is open to all staff. This was sent in 2017. The Complainant submits that people who applied in 2021 have already received their upgrade. The Complainant submits that there seems to be a trend going on and he has about 200 emails to backup when his first grievance took place and all the emails relating to same that the Respondent never recorded.

The Complainant submits that the delay in bring the claim to the WRC has been through no fault of his own.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing, the Complainant outlined in detail the chronology of the events. He submitted that in June 2010 he started working for the Respondent as a Community Welfare Officer and was on a salary of €29,000 on the CWO pay scale. From there he was redeployed to UHL but there was a discrepancy in his pay scale as he was on a different tier and  should have been kept on at the same rate.

The Complainant submits that the procedure for redeployment is that redeployment may not always be to a role/grade of similar/equal status. However, an employee's existing pay and terms and conditions of employment will be protected if they participate in the redeployment scheme. This is the agreed protocol between the HSE, health service employers funded by the HSE and trade unions representing staff employed throughout the health services.

The Complainant submits that in December 2010 he got an email outlining the essential redeployment details and he was asked to take holidays and await a phone call with a start date in the new year. In January 2011, the Complainant joined as a Ward Clerk, he was then redeployed to the A&E Department. The Complainant submits that he received his contract and noticed that his pay scale had changed and there were other errors in the contract.

The Complainant submits that new employees were on a different pay scale for doing the same job.

The Complainant addressed the issue of shift work and he was told  that he would be put on a list to transfer to straight days. The issue of salary scale was not entertained. The Complainant questioned how could he "start" a new job without an interview if he was not being redeployed during a hire freeze.

The Complainant submits that he emailed the Respondent in February 2011 regarding his contract.

Thereafter, an email exchange ensued. In March 2011, the Complainant received a letter stating that he was not redeployed.

The Complainant submits that a meeting was arranged for 23 October 2012 where the HR Manager HSE Mid-West stood firm on redeployment. This was followed up with further email correspondence.

Further correspondence ensued between March 2013 and September 2014. In August 2014 the Complainant received his permanent contract. He requested a meeting as the pay scale matter has not been addressed. A meeting was arranged with the Director of HR ULH in September 2014. The Complainant submits that in June 2015 he received an email that the mater be actioned at a local level.

The Complainant submits that in August 2019 he sought an update. He again emailed the Respondent in December 2020 and further email exchange followed.

The Complainant submits that in February 2021 he received an email stating that he was not redeployed, did not take holidays up to his appointment as a Ward Clerk , and that his grievance was not upheld. The Complainant submits that he replied to the Respondent saying that he did not wish to have his grievance started all over again. He would like a compromise to be met with HR before 7 March 2021.  Further correspondence followed and a meeting was arranged with an appointed reviewer grievance stage two  (General Manager of a Directorate) on 8 March 2021. The Complainant attended the meeting as a matter of courtesy.

The Complainant stated at the hearing that he relies on the absence of any interview at the time of the move in support of redeployment.

The Complainant submits that he lost approx. €230 gross fortnightly. As of 2012 the difference in pay was approx. €6,000 a year. (€29,000 versus €23,000).

Preliminary matter – time limits The Respondent submits that the claim is out of time.

The Respondent’s position is that the Complainant’s grievance regarding his Clerical Officer salary was responded to. There was extensive communication and meetings with Complainant by the Assistant National Director following his raising grievance on 27 March 2012. The Respondent’s position and decision were given to the Complainant in 2012.

Background

The Complainant commenced employment on a six-month Specific Purpose Contract as a Community Welfare Officer for the Back to School Scheme 2010, from 14th June 2010 to 315t December 2010. The Complainant was hired on SAP Payroll system for a Special Project. Copies of relevant correspondence and contract of employment were exhibited at the hearing. The Complainant’s salary for this Specific Purpose Contract was €29,218 pro-rata (a copy of payroll record was exhibited at the hearing).

At the end of this contract the Complainant was offered the post of a Temporary Clerical Officer at UL Hospitals (formerly Mid-Western Regional Hospital), with an initial assignment to the Emergency Department on 4th January 2011 (copies of the offer letter and the specific purpose contract were exhibited at the hearing). The Complainant was appointed to the first point on the Clerical Officer scale at the time, which was €23,187 (a copy of the payroll record was exhibited at the hearing).

The Complainant did not sign this Temporary Clerical Officer contract dated to commence on 4 January 2011 or Contract of Indefinite Duration in 2015, however he worked in this role until 1 May 2022, therefore terms and conditions of the contract are implied in the absence of a signed contract.

The Complainant was due an increment to 2nd point of Temporary Clerical Officer scale on 4 January 2012, this was brought forward six months to 14 June 2011, recognising previous experience working with the Respondent (copies of the payroll record and relevant email correspondence were exhibited at the hearing). The Complainant completed and signed a HR102 form, Change to Employee Terms form to amend his Terms and Conditions from that of a Community Welfare Officer to a Ward Clerk/Clerical Officer (a copy of the form was exhibited at the hearing).

The Complainant claims that he was redeployed to his Temporary Clerical Officer position on the basis of an email issued at the time (30 December 2010) to "ALL MWHB", subject: "Urgent Attention Essential Redeployment” with an attachment: "Process for filling essential Clerical/Administrative vacancies as a result of EXIT schemes 2010 (copies were exhibited at the hearing).

The Respondent submits that the scheme was an action following HSE HR Circular 011/2010 dated 2 November 2010. This circular provided for Voluntary Early Retirement Scheme and Voluntary Redundancy Schemes (a copy  was exhibited at the adjudication hearing).

For clarification, the email of 30 December 2010 and the attachment refer to a number of staff who availed of HSE Exit schemes. This particular scheme focused specifically on essential front-line posts at Grade 3 and 4 level initially. Essential redeployments under this scheme took effect from Thursday 6 January 2011, therefore this does not apply in the Complainant’s case.

2012

The Complainant had raised his query in 2012 with the relevant HR Manager at the time and also forwarded to National HR (copies of the Complainant’s correspondence were exhibited at the hearing).  The HR Manager HSE Mid-West corresponded with the Complainant in April 2012, May 2012, June 2012 and July 2012, with a follow up meeting on 23 October 2012 outlining the criteria for redeployment and why the position of Temporary Community Welfare Officer for the Back to School Scheme was not eligible for redeployment. The Complainant’s contract for Temporary Community Welfare Officer was for a specific purpose for the Back to School Scheme 2010 and was terminated on the cessation of this project. At this time the HR Manager HSE Mid-West discussed with the Complainant if he was interested in a temporary Clerical Officer position within the Mid-West, which he accepted (copies of the relevant correspondence and minutes of the meeting of 23 October 2012 were exhibited at the adjudication hearing).

2015

Subsequently the Complainant met with the Director of Human Resources UL Hospitals in March 2015, where he was advised to raise his grievance with the Director of Human Resources, Mid-West Community Health Organisation. (a copy of the correspondence of 2 March 2015 was exhibited at the adjudication hearing).

There is no follow up correspondence on file to the Director of Human Resources, Mid-West Community Health Organisation from the Complainant.

It is noted from correspondence that there were other matters raised that have been satisfactorily addressed.

2021

In January 2021 the Complainant raised his query with the Group Director of HR UL Hospitals (copies of relevant email correspondence were exhibited at the hearing). The complaint was progressed through the HSE Grievance Procedure stages 1, 2 and 3 with outcomes issued to the Complainant dated 18 February 2021, 8 March 2021, 22 March 2021 and 28 April 2021. The Complainant was advised to submit any supporting documentation to support his redeployment claim, no documentation was received (copies of the relevant documentation were exhibited at the hearing).

The Respondent’s position

The Complainant commenced on a six-month Specific Purpose Contract on the 14 June 2010, which ceased on 31 December 2010.

Essential redeployments as a result of Exit Schemes do not apply in the Complainant’s case for the reasons outlined above.

The Complainant was offered a Temporary Clerical Officer contract commencing 4 January 2011, he was appointed to the first point of the scale and was subsequently afforded incremental credit recognising previous six month's experience with the Respondent.

The Complainant completed and signed a HR102 to change his Terms and Conditions from that of a Community Welfare Officer to a Clerical Officer.

By virtue of four years’ service, the Complainant was entitled to be progressed for a Contract of Indefinite Duration in 2015. This contract was issued on 24 April 2015 and the Complainant refused to sign same due to an ongoing issue with his pay scale (copy of relevant correspondence was exhibited at the hearing).

It is noted that the Complainant was successfully promoted to a Grade IV position on 2 May 2022 and to a Temporary Grade V position on 10 October 2022.

In that regard the Respondent believes that Complainant's case is not well founded.

At the adjudication hearing, the Assistant National Director, Ms Nix, on behalf of the Respondent said that at the time the Respondent tried to give an employment opportunity to as many people as possible from the CWO cohort. They were asked to let the Respondent know if they were interested in a job.  Ms Nix noted that no other person from the CWO cohort raised a claim.

Ms Nix emphasised that there is a strict redeployment mechanism in place, and the Complainant was not redeployed.

Ms Nix confirmed that the Complainant’s employment ended at the end of December 2010. She did not dispute that the payroll record showed 3 January 2011 as the last day. However, she claimed that this was because there was still an outstanding pay due to the Complainant. However, the Back to School scheme 2010 ended on 31 December 2010.

Ms Nix noted that 13 years ago people could have been employed on the basis of previous work experience and not necessarily on the basis of an interview. This process is much stricter now.

Ms Nix said that when the Complainant was initially employed, he was informed that his contract would end on 31 December 2010.

Ms Nix said  that she dealt with the Complainant’s queries in 2012 and he did not like the answer. He should have referred it to the WRC at the time but he kept repeating the same grievance that was dealt with in 2012.

Preliminary matter

The Respondent raised a preliminary matter of time limits and contended that the within complaint was referred to the WRC outside the prescribed time limits.

The Complainant referred his claim to the Director General of the WRC on 8 February 2022 alleging that the Respondent made an unlawful deduction from his wages. The date on which the deduction was made was stated in the WRC complaint form as 14 January 2010. However, at the adjudication hearing, the Complainant indicated that the alleged deduction was ongoing. It was not disputed that as of 2 May 2022 the Complainant was promoted and he agreed that correct pay was applied as of that date.

Section 41 of the Workplace Relations Act stipulates that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

As provided for under section 41(6) of the Workplace Relations Act 2015, an Adjudication Officer cannot entertain a complaint if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. In Health Service Executive v McDermott [2014] IEHC 331, the High Court considered the proper interpretation of section 6(4) of the 1991 Act (which was substituted by section 41(6) of the Workplace Relations Act 2015) which prescribed the time limit for claims before a Rights Commissioner (now an Adjudication Officer). The Court held that, having considered the construction of section 6(4) of the 1991 Act, every non-payment or deduction from wages is a distinct and separate breach of the Act amounting to a contravention.

This complaint was presented to the WRC on 8 February 2022. Applying the time limits provided for in section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this complaint is 9 August 2021 to 8 February 2022.

Substantive matter

Section 5 of the Payment of Wages Act provides as follows:-

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

In the present case, the Complainant alleges that he was redeployed from his role as a Temporary Community Welfare Officer which attracted a salary of approx. €29,000 to the role of a Ward Clerk at approx. €23,000.  The Complainant submitted that, following his appointment to a new role in January 2011 an incorrect pay was applied to him and, as a result the Respondent made an unlawful deduction of €6,000 a year (€230 fortnightly) thereafter.

In support of his claim, the Complainant relied on an email issued by the Respondent to all staff on 30 December 2010. The subject of the email was “FW: URGENT ATTENTION ESSENTIAL REDEPLOYMENT”. The email and attached document clarify the “process for filling essential Clerical / Administrative vacancies as a result of EXIT Schemes 2010”.

The Respondent asserted that the Complainant was not redeployed. It was argued that the Complainant’s temporary contract as a Community Welfare Officer expired on 31 December 2010. He was then offered a role of a Ward Clerk on 4 January 2011 on a temporary basis. While it was accepted that no competition was run for the purposes of the new role, the Respondent clarified that a number of roles were offered to those who have been previously employed by the Respondent as the Community Welfare Officers.

There was no dispute that the Complainant was initially employed on the basis of a Specific Purpose Contract “for the purpose of filling a vacant temporary post Community Welfare Officer for the duration of the Back to School Scheme 2010”. There was also no dispute that the scheme ended on 31 December 2010.

The Complainant was then offered the post of Temporary Clerical Officer. The HR letter in relation to this role makes no reference to redeployment. The Specific Purpose Contract issued to the Complainant stipulates that he would commence his employment with the Respondent on 4 January 2011 and his employment was “for the purpose of providing cover pending the permanent filling by re-deployment”.  

Redeployment suggests moving of an existing employee to a different role. However, the Complainant’s employment with the Respondent ceased on 31 December 2010 as a result if the expiry of the Back to School Scheme 2010. As there was no continuation of employment, the Complainant could not have been redeployed to a different role as of 4 January 2011.

Having considered the submissions of the parties and all evidence adduced, I find that, apart from the Complainant’s assertion, there was no evidence offered to me that would support the Complainant’s claim that he was entitled to a salary different than that paid to him in line with his contract.

I declare this complaint to be not well founded.

Redeployment- specific purpose contract- deductions