Worker

Employer

Anonymised Parties

Public Servant

Government Service Provider

Representatives

Thomas Smyth                                             Irish Medical Organisation

Emily Sexton Solr.                             Conor Whyte Solr.                                Comyn Kelleher Tobin Solicitors

Act

Dispute Reference No.

Date of Receipt

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

09/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043491-001

09/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044694-001

18/06/2021

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. The evidence was heard, and the submissions were presented over the course of two days.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the need for fairness. Members of the public were precluded from attending. Parties gave their evidence on Affirmation.

In addition to a dispute brought under the Industrial Relations Acts, it is noted that by way of two separate complaint forms, the Complainant has also brought separate claims under the Payment of Wages legislation (CA-00044694-001 and CA-00044694-001) and theses complaints are dealt with herein as a matter of convenience and completeness.

The Worker was fully represented. The Worker/Complainant gave evidence on her own account and her evidence was fully tested by the Respondent representative. I was additionally provided with two written submissions from the Complainant. The first was dated the 21st of February 2022 with the second dated the 23rd of August 2022. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case.

In her Workplace Relations Complaint Form dated the 9th of November 2021 (outlining the Industrial Relations dispute) the Complainant/Worker asserts an entitlement to be paid for the overtime she worked during the Covid Pandemic.

This assertion is repeated in the two payment of Wages claims also brought – in each of these, the Complainant will have to establish an unlawful deduction has been made.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had legal representation at this hearing.  The Respondent entity’s position was primarily articulated by a HR Director. One other witness also gave evidence on behalf of the Respondent. All evidence was given on Affirmation. I was provided with a comprehensive submission dated the 23rd of February 2022. The Respondent witnesses were cross examined/questioned as appropriate by the Complainant representative.

The Respondent rejects that there is any entitlement to overtime as alleged or at all.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and

I have carefully considered the evidence adduced in the course of two days of hearing. I have additionally considered the very helpful and comprehensive submissions prepared by both sides herein.

A preliminary issue was made by the Respondent concerning my jurisdiction to hear this matter and in particular it is contended that the Complainant has brought a dispute before the WRC which is connected with rates of pay and which she is specifically preluded from doing pursuant to Section 13(2) of the Industrial Relations Act 1969. The Complainant has made a comprehensive submission by way of reply, and I am satisfied that the nature of this dispute does not seek to upset or otherwise challenge or interfere with rates of pay. The Complainant accepts all applicable rates of pay and is simply challenging a refusal on the part of her Employer to pay overtime. This dispute therefore falls within my jurisdiction.

The Complainant is a highly qualified and able Professional. The Complainant has worked in her Profession for over thirty years and has a singular experience and understanding of her particular area of expertise. In September of 2019 the Complainant applied for a position/role within a State operated Health service. The Complainant gave extensive evidence on what the role was expected to entail. As the job specification (which was provided to me) ran to some eleven pages, there can be no doubt that this was a huge role and always intended to be. The job was always going to be a big one.

The Complainant was interviewed in December 2019 and commenced her employment in March of 2020. It is important to note that whilst the complainant commenced her employment on a starting salary of €135,000.00, there was additionally a sum of €46,000.00 per annum to be paid over and above the standard salary (giving an annual salary of €181,000.00). This second sum of €46,000.00 is perceived to an Allowance (to be referred to by me as the DC Allowance). As I understand it, the concept of this DC Allowance was first introduced under the Consultant’s Contracts back in 2008. I believe that both parties accept that the Allowance is payable over and above the basic salary in recognition of the high levels of Management and leadership required in the execution of the role.

The parties entered into a Contract of Employment. The Complainant was clearly obliged to work a 37-hour week under the Contract of Employment.

There can be no denying the fact that the Contract of Employment also provided for Overtime. At point 10. it reads …”You may be required to work overtime, remuneration for which will be in line with nationally approved rates for your grade.”

I do not think that either party would have expected that the issue of overtime (and the Complainant working overtime) was ever intended to become such a bone of contention. The Complainant agreed with me that, given the seniority of her job, she would absolutely expect that she would regularly have to come in early or stay late. There would have to be an inbuilt flexibility expected in the Contract. Ordinarily, hours worked over and above the 37 hours agreed to would not automatically be clocked up as overtime, but operated as one of the requirements associated with a high level position such as this. The Complainant said in evidence that she was used to this as any job she had previously worked had this expectation.  The Complainant indicated she would have seen the benefit in perhaps of the quid pro quo of being able to attend, for example, a dental appointment on a workday afternoon. There’s a flexibility and trust inbuilt into the hours of work.

However, as chance would have it, the Complainant commenced her Employment in this position just as the country became convulsed by the Covid Pandemic.

I accept the Complainant’s evidence that from the start of her employment she worked well more than her contracted 37 hours. Amongst the paperwork provided to me, the Complainant prepared an analysis of her weekly hours for a one-year period from May 2020 to May 2021. This purports to demonstrate that the Complainant worked anywhere up to 35 hours a week over and above her Contractual obligation. This would work out as 5 hours per day Monday to Sunday. As I understand it the Complainant says she worked a lot of the extra hours on the weekends.

I know the Respondent, in principle, challenges the fact of each of these hours having in fact been worked, and I also acknowledge that some weeks involved considerably fewer extra hours worked per week (per the schedule provided). Presumably each week brought a new phase of the Covid pandemic, and a different response was required.

I would accept, however, that on balance there can be no doubt that the Complainant was working (as was everyone in this front-line service) every hour that she needed to, to keep the wheels in motion. The Complainant detailed the stress and strain associated with late night calls, early morning meetings and rapid-fire decision making. The Complainant was, she says, obliged to be available outside her normal assigned weekly hours as per her Contract. This was not negotiable and a matter of necessity. I understand that, to the Complainant, the situation seemed interminable and she could see no way out.

The Complainant also gave evidence that she understood from the outset, that she would be required to be on call over weekends. Again, this was familiar territory for the Complainant who indicated that she had always worked to an on-call roster. In this workplace, she shared the roster with two other individuals competent to work at her level. I understand that, in response to the pandemic, the three individuals (including the Complainant) opted to work two weekends in every three - sharing the load for each weekend on a fifty/fifty basis. An on-call level of remuneration has been agreed for Workers of the Complainant’s level at a figure of €576.00 per week of assigned on-call duty.

It was clear from the evidence tendered that the Complainant’s workload was incredibly onerous as new problems regularly arose and new solutions needed to be found and executed. The Complainant had to regularly add to her workload as she was the person best placed to respond to situations as they arose. The Complainant was obliged to attend muti-discipline meetings responding to the pandemic situation as her expertise and knowledge was invaluable to the national planning of a pathway through the pandemic, and out of lockdown. Her Employers and colleagues, in their evidence, praised the commitment and dexterity shown by the Complainant at a time of, what was, a national crises. 

In response to the increased hours of work, the Complainant started to submit overtime forms.

I was shown a copy of the standard form to be submitted for those hours claimed to be worked over and above the standard contracted 37 hours. It is clear from the form, that the appropriate line Manager must sign-off on the overtime claim, and he or she must confirm or agree with the reason that has been identified for paying additional monies for the additional hours. There must be a positive requirement for the work to be done. This is the same language as used in the Contract of Employment which states “you may be required to work overtime...”. The same language is repeated in Circular 05/2020 - upon which the Complainant relied - which also makes it clear that overtime rates will apply only where an individual’s Manager “clearly indicates that the… [person]...is required to work on the day”.

The point is, of course, that an individual cannot opt to do remunerated overtime at their own discretion or volition. A person cannot claim overtime, even if it seems appropriate to do so. Overtime must be required, or at the very least agreed to, by a Line Manager.

The Complainant’s Line Manager refused to approve the overtime hours being sought by the Complainant on a weekly basis. The Complainant appealed the decision to no avail.

The Respondent’s evidence, as provided by the Director of HR, is that the Complainant is simply not entitled to be paid overtime. There are no overtime rates applicable to someone at or over Grade VII within this place of work. This last point is relevant as the reference in the Contract of Employment is for overtime at nationally approved rates for your grade. The Employer asserts it cannot pay overtime where no rate is agreed, recognised, or known.  I was told that overtime in the public service is only ever intended to apply to persons on wages of under €70,000.00 per annum.  Persons earning over €70,000.00 are generally expected to get on with it. The Complainant was, of course, on two and a half times that salary. I was additionally told that the DC Allowance already referenced herein is an Allowance which is intended to fully compensate a person operating at the Complainant’s level. The DC Allowance takes account of the Senior Leadership and Management requirements and recognises the fact that there is a burden and onus associated with the commitment and dedication required in the post.

The Complainant relied quite heavily on a previously referenced Circular 05/2020 which dealt with how overtime claims were to operate during the Covid-19 containment phase and for a class of employee with whom the Complainant says she could readily and legally identify. The Respondent sought to distinguish the Complainant’s position from those persons at whom this circular was directed. In particular, none of the persons making overtime claims under this circular would have been in receipt of the enhanced DC Allowance. Also, all of the persons making overtime claims under this circular were specifically directed and required by their Line Managers to be rostered to work at allocated and pre-scheduled times where the system was responding to the pandemic crises and their presence was a matter of necessity.     

It is certainly regrettable, in the circumstances, that the complainant’s Contract of Employment appears to suggest that there is the potential for overtime payments to be made- albeit as and when required by the Line Manager. I have previously quoted the relevant S 10 therein …”You may be required to work overtime, remuneration for which will be in line with nationally approved rates for your grade.”  The Respondent sought to brush off or otherwise disregard this clause in the Contract as being a generic clause which never had any applicability to the Complainant’s circumstances. This is an incredibly unsatisfactory argument or proposition. The Contract of Employment was created by the Employer and provided to the Employee and the Complainant has relied on the words contained therein – which she may be entitled to do as a matter of Law.

It is also regrettable to note that given the exceptional circumstances, the Complainant was never offered TOIL in recognition of the work done by her at this crucial time. The Complainant says that a request for time off was made by her and that this was denied.

The Complainant did agree with the proposition that there was an in-built requirement for flexibility and longer hours. She agreed that the DC Allowance covered this requirement though I think she saw it more as compensation for stepping into Management and leadership roles – without really accepting that Managers and leaders are expected to go the extra mile (in terms of hours of work) when needed to. When I pushed her, she agreed that she might be expected to work an extra seven or eight hours in a week without compensation. This was a fair concession on the Complainant’s part but didn’t really explain how the hours over and above the first seven should count as overtime. It was ultimately, to my mind, an arbitrary distinction.

On balance, I do not think that the Complainant was entitled to the Overtime she is looking for. She was at a Senior Management level and in terms of Public Service roles (which come with other benefits), it was a well-compensated role. The country was in crises and the Complainant had to step up. That’s what is expected at that level. The Complainant’s Line Manager refused to sanction overtime on the understanding that the Complainant was doing exactly what was expected of her.

I had great sympathy for the Complainant whose health suffered because of all the pressure she felt she was put under. By June of 2021 – some fifteen months after her start date – the Complainant went out on work related sick-leave. I can understand that in those fifteen months, which were the most difficult of the pandemic, the Complainant felt overwhelmed and consumed by what was expected of her. The work was, she said, non-stop. She felt the weight of expectation bearing down on her. I can understand how she came to believe that she needed to be compensated for the pressure. Even though she knew, and still knows, that everybody was under pressure, and that everybody was suffering financially, physically, and mentally. The Complainant understands that everyone did everything they could, and everything that was expected of them.  The fact is that the pandemic randomly demanded exceptionalism from some people and that those people – we collectively understand - made all the difference.

I should note that the Respondent did put up a second witness who gave comprehensive evidence on the levels of support being put in place to support the Complainant as her workload increased. The Complainant got executive support and funding and had a dedicated recruitment team working to find appropriate staff to do the work the Complainant was overseeing.  It could not be said that the Respondent abandoned the Complainant. Having regards to the employer in this situation, I would have to accept the objective fact that the Employer fulfilled the duty of care it clearly had to  the Complainant.

The Complainant was out of work on paid sick leave (though I understand not at full pay) until November 2021. The Complainant never returned to work at the level she experienced in that 15-month period and as I understand it the Complainant now works with the same organisation part-time.

It did become clear in the course of the evidence given, that the complainant had failed to distinguish between her claim for hours worked as overtime and the time given to the on-call service. This second commitment did form a part of her Contractual arrangement. The Respondent concedes that the complainant was entitled to these payments and these payments should have been getting paid as and when she was performing the on-call function. I am accepting the Complainant’s evidence that she worked on-call for two out of every three weekends in the fifteen months at the rate agreed and already referenced herein (€576.00). The Respondent agreed that this money had to be paid.

The Complainant has additionally brought two claims for payment of wages under Section 5 of the Payment of Wages Act, 1991. The first claim is dated the 9th of April 2021 and the second is dated the 18th of June 2021. Claims of this nature generally only relate to the six-month period immediately preceding the date of the Complaint. Both complaint forms seek payment of wages which were, it is asserted, unlawfully deducted and contrary to Statute. In both complaints it is alleged that the payment for overtime was unlawfully deducted contrary to Statute. For reasons already set I do not accept the Complainant’s claim. There can be no unlawful deduction of monies that were simply not payable in the first instance.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043491-001 – The Complaint is not well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044694-001 - The Complaint is not well founded