Complainant

Respondent

Parties

Aiman Ahmed Mohamed  Elamin

Galway University Hospital Medical Manpower

Representatives

  Self

 Paul Hume HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 27  of the Organisation of Working Time Act 1997-see note below

CA-00055459-001

08/03/2023

This case is concerned with the nett amount paid to the Complainant instead  of annual leave accrued during the annual leave year 2020,leave which he contends he was compelled to take due to what is known as the Covid emergency.

The Complainant gave evidence of commencing employment with the Saolta Group in Galway on the first of three contracts in August 2019,employed as a NCHD. The Covid emergency started in March 2020 and he and other staff were unable to take annual leave. During this period, he was working 24-hour shifts, involved in surgical activity and doing off-site on-call. Later that year he wanted to take three weeks holidays but was told no, that they would pay him instead. Over the next two years he sought the payment but was either ignored or failed promises were made to get back to him and/or to address the situation. The Complainant provided emails and the names of those he spoke to between July 2020 and June 2022 until finally he received  the payment in June 2022. However, the nett payment was less than he expected and it is this nett payment which he is contesting. When he queried the payment, he described an aggressive phone call with a member of staff to the effect that these are the regulations in Ireland and the law could not be changed for him. In that call he was informed that Revenue would pay a tax refund to him. When he contacted Revenue who told him that the situation should be fixed by the employer. When he went back to the payroll section in Galway, they told him it could not be fixed by them. On 27.02.23 he sent an email to Medical Manpower but they did not reply to him at all. On 8 March 2023 he made a complaint to the WRC.

The Complainant confirmed at the hearing  that the gross amount was the correct calculation for the pay in lieu  of the annual leave.  Asked by the Chair what he is seeking, the Complainant replied that he is seeking the balance of the payment between the amount paid and the gross pay due to him in holiday pay.

Mr Hume made a submission that the Complainant is a very valued employee-there is no question about his integrity or hard work. As the HR representative he was not aware of emails not being responded to-but what he had heard was not the standard the employer hoped to attain. There was a huge turnover of staff during Covid but he was not aware of anyone being forced to take payment instead of annual leave.

Evidence of Mr Tony Baines Finance Saolta Group

Mr Baines clarified the amounts involved as follows.

The amounts involved are

Gross Holiday Pay €3246.10 =16 days

Amount received  €1543.73

Difference              € 1702.37

Advisory notes issued by Revenue for payment in or after August 2019 meant that any payment made, regardless of the period covered by that payment must be taxed in the period it was paid(and not earned). Any adjustment would have to be authorised by Revenue. He explained that it was also likely that the payment would have resulted in a full deduction of 40% in any event and that a refund of tax was unlikely to arise in this case.

Workplace Relations Act 2015 Section 41 Time Limits for submitting complaints to the WRC

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

(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.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Payment made in June 2022

As the disputed  payment for annual leave for the annual leave year/s to June 2020 was not paid until June 2022,it is the later date which marks the date of the contravention. By applying the terms of subsection (5) the initial six-month period set out in Section 41 subsection (5) ended on June 22nd, 2023.

 As the date of referral to the WRC was 08.03.23,then by application of subsection (5) the complaint falls outside of the time limit expressed in that subsection. Given  the Complainants experiences at the hands of staff in the HSE over a two-year period and that he received his final response only in February 2023,it would be perverse not to apply the term reasonable cause  to the delay by the Complainant in submitting his complaint to the WRC. Reasonable means reasonable-not exceptional and surely delays by an employer over an extended period despite representations by the employee in this case were altogether unreasonable.  I have decided to consider this aspect of the complaint under Section 41 subsection(8) of the Act.

Moving on to consider the substance of the complaint, of note is that the Complainant accepts that the gross calculation of his annual leave entitlement when it was finally paid in June 2022 was entirely correct. On this basis, there cannot be a valid complaint regarding the payment received under the Organisation of Working Time Act 1997,for two reasons. Firstly, it is likely that the annual leave included leave derived from his contract of employment and  in excess of  his statutory entitlement. More importantly, complaints under the Organisation of Working Time Act relate to non-payment or underpayment of leave and, so long as the gross calculation is correct, the deduction of tax and nett payments are a matter between the employee(sometimes former employee) the employer and the Revenue Commissioners. It is not a matter for an Adjudication Officer to apply revenue guidelines to arrive at the correct nett payment. This point was made to the Complainant at the hearing, but while it may not have been fully appreciated, it is the correct finding in relation to the payment finally received in June 2023. The Complainants position  that there should be no tax payable on the gross payment- that too is a matter for the three parties mentioned.

As it is accepted that the correct gross payment for annual leave was paid by the Respondent the complaint to the WRC regarding the nett amount of pay received in respect of annual leave in 2020 is not well founded.

Payment in lieu of annual leave

It was this alleged directive received by the Complainant which gave rise to the entire issue of the amount to be paid. The management of the HSE denied that employees were compelled to take pay in lieu of annual leave in 2020. Based on the emails which I have seen, this contention is dubious to say the least. While I will go on to rule any consideration of this issue out of time by application of Section 41-and I recognise that it arose as part of the complaint and was not central to the complaint made by Dr Elamin, I cannot conclude this decision without placing on the record my deep concern that this practice of  payment in lieu of leave occurred in the first place. Accepting there could be a technical distinction between statutory and non-statutory leave, the terms of Section 20 of the Organisation of Working Time Act 1997 are all based on the principal term ‘shall ‘requiring an employer to make payments to the employee for paid time off-not payment in lieu of annual leave. The timing of annual Leave and arrangements by which untaken leave may be carried forward are primarily matters for the employer to decide and discuss. However, payment in lieu of  such leave is a breach of the health and safety provisions of the Organisation of Working Time Act 1997. I am satisfied from the emails seen that the HSE not only refused the Complainant paid time off but made it clear to him and presumably others that payment would be made instead of health and safety leave. I cannot accept that he might have been an exception to a rule in 2020. These points are made for future reference by the Complainant who remains in the employment of the HSE so that he may be aware of his rights in this jurisdiction but primarily for the benefit of the HSE, and why they  apply irrespective of any Covid or similar emergency.

On the application of Section 41, the Complainant did not make any complaint to the WRC in which he referenced being refused his three weeks of annual leave accrued in July  2020 until March 2023 and as that aspect of the situation falls well outside of the time limits expressed in Section 41 (5) and (8)  the correct decision is that I do not have jurisdiction to hear this aspect of the complaint and therefore it is not well founded.

CA-00055459-Organisation of Working Time Act The complaint by Mr Aiman Ahmad Mohamed Elamin is not well founded.