FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 PARTIES: HEALTH SERVICE EXECUTIVE DIVISION:
SUBJECT: Appeal of Adjudication Officer Decision No's: ADJ-00042638 (CA-00053180-001) DECISION: Background This is an appeal by the Complainant against Adjudication Officer’s Decision ADJ-00042638 given under the Payment of Wages Act 1991(the Act) in a claim by Ms Glynn (Complainant) that she suffered an unlawful deduction from her wages when Health Services Executive (Respondent) stopped paying her shift allowance. The Adjudication Officer found the complaint was not well founded. The cognisable period for the purpose of the Act is the 11th April 2022 to the 10th October 2022, the date the complaint was lodged with the WRC. Summary of Complainant’s submission The Complainant commenced employment with the Respondent as a paramedic on the 24 May 2008. She suffered an injury in or around December 2019 and was facilitated with an alternative role. In late March 2020 during the covid pandemic the Complainant was redeployed to a Covid Swabbing role and her shift pay continued to be paid. On the 11th April 2022 the Complainant received an email from the Covid Response Manager advising that as a member of the Covid team her rostered shifts do not meet shift pay entitlements and that the payment would cease with effect from 11th April 2022. Shortly after on the 28th April 2022 the Complainant raised a stage 1 grievance setting out that the roster she was working met the shift pay requirements as per the 1978 Ambulance Agreement. By correspondence of the 20th May 2022 she was advised that her grievance was not upheld. The Complainant appealed that decision and included a copy of her roster. The appeal was referred to Mr Quinlan Covid Response/Winter lead who advised by letter of 1st June 2022, that they were awaiting the outcome of a similar complaint which was at the WRC, and he felt that outcome would impact on her complaint. He stated they would be in touch once they had that outcome. The Complainant responded advising that in accordance with the grievance policy she was seeking a hearing of her complaint. The Complainant also identified a change of the wording in the ambulance agreement whereby management appear to have changed the word ‘or’ to ‘and’. The Complainant noted that this change had not been agreed with the other party to the agreement the Unions and therefore was not a valid change. A stage 2 grievance hearing was held on the 12th July 2022. However, despite representations from the Complainants Union no outcome to the grievance procedure was forthcoming. The Complainant referred her case to the WRC on 10th October 2022. The Union on behalf of the Complainant submitted that she is entitled to the shift allowance based on her work pattern as a covid swabber. Every week she was rostered at least two or more duty periods which started at 7.30am. The Complainant submits that in accordance with the 1978 Ambulance agreement the shift payment was properly payable during the Covid period and that she has sustained considerable loss by not being paid same. Summary of Respondent’s submission Mr Deegan on behalf of the Respondent submitted that as a paramedic the Complainant worked on ambulances and her normal duties involve 24/7 shift work. During the relevant period she was not medically capable of performing her normal duties as a paramedic working on ambulances. The Complainant was facilitated with a move to other duties as a covid swabber which did include travelling to peoples homes to swab them. There was no requirement to be medically trained to be a Covid swabber. In that role the neither the Complainant or anyone else working in that role was required to work on ambulances or to work 24/7. During the relevant period the Complainant was rostered between 10.00 and 20.00 hours two days per fortnight and between 7.30 am and 19.30 hours five days per fortnight. During the relevant period she worked on averaged 1.27 shifts per week, and she was not required to work nights. Ambulance grades, including paramedics who work on ambulances, work rostered shifts rotating through shifts, at different times of the day and night and this is why they are paid the shift allowance. The Complainant in this case had an early and late start but did not work rostered shifts rotating through the shifts. In Labour Court Recommendation No. 7001, Southern Health Board and Irish Transport and General Workers’ Union reference is made to Recommendation 3600 of June 1975 were it was stated “that to qualify for the payment of a shift premium”…. Persons must work alternating or rotating shifts which have starting variation of at least four hours” In Recommendation No 7001 the Court recommended that to qualify for shift allowance the Workers covered by the claim must have a starting time variation of at least four hours and a difference of at least 12 hours between the earliest and the latest finish time. In the case to hand the Complainant either started at 7.30am or 10.00am and finished at either 19.30 or 20.00. The Respondent accepted that the start time of 7.30am only applied to a hand full of staff who had come from a paramedic background. They were unable to identify any business reasons for starting that cohort of staff at an earlier time than everyone else doing the same work. However, it was their submission that staff doing covid swabbing, even staff going out to people’s houses did not need to be paramedics, and the fact that on or two people had an earlier start did not mean they were entitled to a shift allowance. During the relevant period the Complainant was not working as a paramedic or in an Ambulance grade. She was redeployed as a covid swabber a grade that does not attract a shift allowance. Therefore, the Respondent submitted there was no deduction from the Complainants wages and no breach of the Act. The applicable law Section 1 of the Act states: 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, and ( b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) states; “Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. Discussion As set out by the High Court in the case of Marek Balan’s v Tesco Ltd [2020] 31 E.L.R. 125 the first issue for the Court to consider is what was properly payable. In the case to hand the question arises as to whether or not the Ambulance grade shift allowance was properly payable to the Complainant during the relevant period. It is not disputed that during the relevant period the Respondent facilitated the Complainant by redeploying her as a covid swabber as the Complainant was not in a position due to an injury to carry out her paramedic role on the ambulances. Nor is it disputed that the role of covid swabber either in a covid centre or community based, does not attract a shift allowance. On that basis the Court determines that during the relevant period the Complainant was not entitled to the ambulance grade shift allowance and was paid what was properly payable in accordance with the work she was carrying out. Determination The Court having carefully considered the issues set out above and the totality of the submissions from both parties determines that no breach of the Act occurred on the basis, that the Complainant was paid what was properly payable during the relevant period. The appeal fails, the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary. |
